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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________________________
FORM 10-Q
________________________________________________
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☒ |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended June 30, 2018
or
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☐ |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 001-36507
________________________________________________
ServiceMaster Global Holdings, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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20-8738320 |
(State or other jurisdiction of incorporation or organization) |
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(IRS Employer Identification No.) |
150 Peabody Place, Memphis, Tennessee 38103
(Address of principal executive offices) (Zip Code)
901-597-1400
(Registrant’s telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
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Yes ☒ No ☐ |
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
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Yes ☒ No ☐ |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☒ |
Accelerated filer ☐ |
Non-accelerated filer ☐ |
Smaller reporting company ☐ |
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(Do not check if a smaller reporting company) |
Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
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Yes ☐ No ☒ |
The number of shares of the registrant’s common stock outstanding as of July 25, 2018: 135,557,854 shares of common stock, par value $0.01 per share.
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Page
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Condensed Consolidated Statements of Operations and Comprehensive Income |
3 |
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4 |
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5 |
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6 |
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations |
26 |
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Item 3. Quantitative and Qualitative Disclosures About Market Risk |
43 |
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44 |
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44 |
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44 |
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45 |
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45 |
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47 |
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48 |
2
Condensed Consolidated Statements of Operations and Comprehensive Income (Unaudited)
( In millions, except per share data )
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Three Months Ended |
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Six Months Ended |
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June 30, |
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June 30, |
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2018 |
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2017 |
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2018 |
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2017 |
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Revenue |
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$ |
874 |
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$ |
807 |
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$ |
1,549 |
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$ |
1,450 |
Cost of services rendered and products sold |
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467 |
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415 |
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829 |
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761 |
Selling and administrative expenses |
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225 |
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206 |
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422 |
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392 |
Amortization expense |
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7 |
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7 |
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12 |
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14 |
Fumigation related matters |
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— |
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1 |
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— |
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2 |
Impairment of software and other related costs |
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— |
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— |
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— |
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2 |
Restructuring charges |
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— |
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1 |
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12 |
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3 |
American Home Shield spin-off charges |
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8 |
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— |
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15 |
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— |
Interest expense |
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37 |
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38 |
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75 |
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75 |
Interest and net investment income |
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(1) |
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(1) |
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(2) |
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(1) |
Loss on extinguishment of debt |
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— |
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3 |
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— |
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3 |
Income from Continuing Operations before Income Taxes |
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130 |
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137 |
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185 |
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199 |
Provision for income taxes |
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34 |
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52 |
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48 |
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76 |
Income from Continuing Operations |
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96 |
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85 |
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137 |
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123 |
Gain from discontinued operations, net of income taxes |
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— |
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— |
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— |
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1 |
Net Income |
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$ |
96 |
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$ |
85 |
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$ |
136 |
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$ |
124 |
Total Comprehensive Income |
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$ |
99 |
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$ |
84 |
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$ |
149 |
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$ |
124 |
Weighted-average common shares outstanding - Basic |
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135.5 |
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133.7 |
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135.4 |
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134.1 |
Weighted-average common shares outstanding - Diluted |
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135.8 |
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135.0 |
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135.7 |
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135.5 |
Basic Earnings Per Share: |
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Income from Continuing Operations |
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$ |
0.71 |
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$ |
0.64 |
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$ |
1.01 |
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$ |
0.92 |
Gain from discontinued operations, net of income taxes |
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— |
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— |
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— |
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— |
Net Income |
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0.71 |
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0.64 |
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1.01 |
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0.92 |
Diluted Earnings Per Share: |
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Income from Continuing Operations |
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$ |
0.71 |
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$ |
0.63 |
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$ |
1.01 |
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$ |
0.91 |
Gain from discontinued operations, net of income taxes |
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— |
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— |
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— |
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— |
Net Income |
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0.71 |
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0.63 |
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1.00 |
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0.91 |
See accompanying Notes to the unaudited Condensed Consolidated Financial Statements
3
Condensed Consolidated Statements of Financial Position (Unaudited)
(In millions, except share data)
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As of |
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As of |
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June 30, |
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December 31, |
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2018 |
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2017 |
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Assets: |
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Current Assets: |
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Cash and cash equivalents |
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$ |
449 |
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$ |
475 |
Marketable securities |
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25 |
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25 |
Receivables, less allowances of $22 and $23, respectively |
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202 |
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570 |
Inventories |
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46 |
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41 |
Prepaid expenses and other assets |
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92 |
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94 |
Deferred customer acquisition costs |
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— |
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36 |
Total Current Assets |
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814 |
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1,242 |
Other Assets: |
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Property and equipment, net |
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245 |
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237 |
Goodwill |
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2,396 |
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2,256 |
Intangible assets, primarily trade names, service marks and trademarks, net |
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1,743 |
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1,692 |
Restricted cash |
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89 |
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89 |
Notes receivable |
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43 |
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41 |
Long-term marketable securities |
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21 |
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22 |
Deferred customer acquisition costs |
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94 |
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— |
Other assets |
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86 |
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68 |
Total Assets |
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$ |
5,530 |
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$ |
5,646 |
Liabilities and Stockholders' Equity: |
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Current Liabilities: |
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Accounts payable |
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$ |
159 |
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$ |
115 |
Accrued liabilities: |
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Payroll and related expenses |
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58 |
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63 |
Self-insured claims and related expenses |
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142 |
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117 |
Accrued interest payable |
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13 |
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15 |
Other |
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68 |
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56 |
Deferred revenue |
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290 |
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663 |
Current portion of long-term debt |
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61 |
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144 |
Total Current Liabilities |
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791 |
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1,174 |
Long-Term Debt |
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2,675 |
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2,643 |
Other Long-Term Liabilities: |
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Deferred taxes |
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529 |
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493 |
Other long-term obligations, primarily self-insured claims |
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188 |
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169 |
Total Other Long-Term Liabilities |
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717 |
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662 |
Commitments and Contingencies (Note 6) |
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Stockholders' Equity: |
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Common stock $0.01 par value (authorized 2,000,000,000 shares with 147,079,375 shares issued and 135,557,005 outstanding at June 30, 2018 and 146,662,232 shares issued and 135,141,048 outstanding at December 31, 2017) |
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2 |
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2 |
Additional paid-in capital |
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2,336 |
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2,321 |
Accumulated deficit |
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(745) |
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(895) |
Accumulated other comprehensive income |
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20 |
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5 |
Less common stock held in treasury, at cost (11,522,370 shares at June 30, 2018 and 11,521,184 shares at December 31, 2017) |
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(267) |
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(267) |
Total Stockholders' Equity |
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1,347 |
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1,167 |
Total Liabilities and Stockholders' Equity |
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$ |
5,530 |
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$ |
5,646 |
See accompanying Notes to the unaudited Condensed Consolidated Financial Statements
4
Condensed Consolidated Statements of Cash Flows (Unaudited)
(In millions)
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Six Months Ended |
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June 30, |
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2018 |
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2017 |
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Cash and Cash Equivalents and Restricted Cash at Beginning of Period |
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$ |
563 |
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$ |
386 |
Cash Flows from Operating Activities from Continuing Operations: |
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Net Income |
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136 |
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124 |
Adjustments to reconcile net income to net cash provided from operating activities: |
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Gain from discontinued operations, net of income taxes |
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— |
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(1) |
Depreciation expense |
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40 |
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37 |
Amortization expense |
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12 |
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14 |
Amortization of debt issuance costs |
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3 |
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3 |
Fumigation related matters |
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— |
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2 |
Payments on fumigation related matters |
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— |
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(1) |
Impairment of software and other related costs |
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— |
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2 |
Loss on extinguishment of debt |
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— |
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3 |
Deferred income tax (benefit) provision |
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10 |
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(2) |
Stock-based compensation expense |
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8 |
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9 |
Restructuring charges |
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12 |
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3 |
Payments for restructuring charges |
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(8) |
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(3) |
American Home Shield spin-off charges |
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15 |
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— |
Payments for American Home Shield spin-off charges |
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(7) |
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— |
Other |
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(4) |
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7 |
Change in working capital, net of acquisitions: |
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Receivables |
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(6) |
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(24) |
Inventories and other current assets |
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(24) |
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(13) |
Accounts payable |
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37 |
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18 |
Deferred revenue |
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12 |
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28 |
Accrued liabilities |
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21 |
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18 |
Accrued interest payable |
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(2) |
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(1) |
Current income taxes |
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22 |
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37 |
Net Cash Provided from Operating Activities from Continuing Operations |
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279 |
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260 |
Cash Flows from Investing Activities from Continuing Operations: |
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Property additions |
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(49) |
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(34) |
Government grant fundings for property additions |
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7 |
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— |
Sale of equipment and other assets |
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1 |
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1 |
Business acquisitions, net of cash acquired |
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(149) |
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(12) |
Purchases of available-for-sale securities |
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(9) |
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(7) |
Sales and maturities of available-for-sale securities |
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10 |
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2 |
Origination of notes receivable |
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(54) |
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(54) |
Collections on notes receivable |
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49 |
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50 |
Other investments |
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— |
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(1) |
Net Cash Used for Investing Activities from Continuing Operations |
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(194) |
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(56) |
Cash Flows from Financing Activities from Continuing Operations: |
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Payments of debt |
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(116) |
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(46) |
Repurchase of common stock |
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— |
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(85) |
Issuance of common stock |
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6 |
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7 |
Net Cash Used for Financing Activities from Continuing Operations |
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(110) |
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(124) |
Cash Flows from Discontinued Operations: |
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Cash provided from operating activities |
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— |
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1 |
Net Cash Provided from Discontinued Operations |
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— |
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1 |
Cash (Decrease) Increase During the Period |
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(25) |
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81 |
Cash and Cash Equivalents and Restricted Cash at End of Period |
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$ |
538 |
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$ |
467 |
See accompanying Notes to the unaudited Condensed Consolidated Financial Statements
5
SERVICEMASTER GLOBAL HOLDINGS , INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1. Basis of Presentation
ServiceMaster Global Holdings, Inc. and its majority-owned subsidiary partnerships, limited liability companies and corporations (collectively, “ServiceMaster,” the “Company,” “we,” “us, and “our”) is a leading provider of essential residential and commercial services. The Company’s services include termite and pest control, home service plans, disaster restoration, janitorial, residential cleaning, cabinet and wood furniture repair and home inspection. The Company provides these services through an extensive service network of company-owned, franchised and licensed locations operating primarily under the following leading brands: Terminix, American Home Shield, ServiceMaster Restore, ServiceMaster Clean, Merry Maids, Furniture Medic and AmeriSpec. All consolidated Company subsidiaries are wholly-owned. Intercompany transactions and balances have been eliminated.
The unaudited condensed consolidated financial statements have been prepared by the Company in accordance with generally accepted accounting principles in the United States (“GAAP”) and pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”). The Company recommends that the quarterly unaudited condensed consolidated financial statements be read in conjunction with the audited consolidated financial statements and the notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017, as filed with the SEC (the “2017 Form 10-K”). The unaudited condensed consolidated financial statements reflect all normal and recurring adjustments that are, in the opinion of management, necessary for the fair presentation of the financial position, results of operations and cash flows for the interim periods presented. The results of operations for any interim period are not indicative of the results that might be achieved for a full year.
American Home Shield Spin-off
On July 26, 2017, the Company announced that it intends to separate its American Home Shield business from its Terminix and Franchise Services Group businesses by means of a spin-off of the American Home Shield business to Company stockholders, resulting in two publicly traded companies. The spin-off is designed to create two independent companies, each with an enhanced strategic focus, simplified operating structure, distinct investment identity and strong financial profile. The transaction is expected to be completed late in the third quarter of 2018, subject to satisfaction of customary conditions, including the effectiveness of a Registration Statement on Form 10 and final approval by the Company’s board of directors. The Company has received a favorable private letter ruling from the IRS regarding the tax-free treatment of the distribution to the Company’s stockholders.
Note 2. Significant Accounting Policies
The Company’s significant accounting policies are described in Note 2 to the audited consolidated financial statements included in the Company’s 2017 Form 10-K. There have been no material changes to the significant accounting policies for the three and six months ended June 30, 2018, other than those described below.
Adoption of New Accounting Standards
In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2014-09, “Revenue from Contracts with Customers,” to provide a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers. On January 1, 2018, the Company adopted FASB Accounting Standards Codification (“ASC”) 606 using the modified retrospective method to those contracts which were not completed as of January 1, 2018. Results for reporting periods beginning after January 1, 2018 are presented under ASC 606, while prior period amounts are not adjusted and continue to be reported in accordance with the Company’s historic accounting under ASC 605, “ Revenue Recognition .” The Company implemented internal controls and system functionality where necessary to enable the preparation of financial information on adoption. See Note 3 to the condensed consolidated financial statements for more details.
In January 2016, the FASB issued Accounting Standards Update (“ASU”) 2016-01, “ Recognition and Measurement of Financial Assets and Financial Liabilities ” to change how entities measure certain equity investments, to require the disclosure of changes in the fair value of financial liabilities measured under the fair value option that are attributable to a company’s own credit, and to change certain other disclosure requirements. The changes in ASU 2016-01 specifically require that the changes in fair value of all investments in equity securities be recognized in net income. In March 2018, the FASB issued an amendment to this standard (ASU 2018-03), which provides further clarification regarding this standard. The Company adopted this ASU on January 1, 2018. As a result of the adoption, less than $1 million of gains and less than $1 million of losses related to the Company’s equity investments were recognized in Net income for the three and six months ended June 30, 2018, respectively, and approximately $2 million was reclassified from Accumulated other comprehensive income (“AOCI”) to Accumulated deficit related to unrealized gains on available-for-sale equity securities upon adoption. Additionally, the Company holds minority interests in several strategic investments which do not have readily determinable fair values. The carrying amount of these investments at June 30, 2018 is approximately $4 million. These investments are recorded at cost and will be remeasured upon the occurrence of observable price changes or impairments. No adjustments to the carrying amount were made during the period.
In January 2017, the FASB issued ASU 2017-01, “ Business Combinations (Topic 805): Clarifying the Definition of a Business .” The ASU clarifies the definition of a business to assist entities with evaluating whether transactions should be accounted
6
for as acquisitions (or disposals) of assets or businesses by providing a screen to determine when an integrated set of assets or activities is not a business. The Company adopted this ASU on January 1, 2018. The consolidated financial statements may be impacted if an acquisition does not qualify as a business combination under the ASU. Such acquisitions would be accounted for as asset purchases.
In May 2017, the FASB issued ASU 2017-09, “ Stock Compensation – Scope of Modification Accounting .” The ASU clarifies the scope of modification accounting for share-based payment arrangements. Specifically, an entity would not apply modification accounting if the fair value, vesting conditions and classification of the awards are the same immediately before and after the modification. The Company adopted this ASU on January 1, 2018 and will apply the guidance prospectively to awards modified on or after the adoption date.
In February 2018, the FASB issued ASU 2018-02, “ Income Statement – Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income ” allowing a reclassification from AOCI to Retained Earnings for stranded tax effects resulting from the corporate income tax rate change in the Tax Cuts and Jobs Act (the “Act” or “U.S. Tax Reform”). It is effective for fiscal years, and interim periods within those years, beginning after December 15, 2018. As allowed by the ASU, the Company elected to early adopt the amendments of this ASU on January 1, 2018 and reclassified approximately $4 million of unrealized losses from AOCI to Accumulated deficit.
Following are the results of the adoption of these standards on the Company’s consolidated statements of stockholders’ equity previously reported:
Accounting Standards Issued But Not Yet Effective
In February 2016, the FASB issued ASU 2016-02, “ Leases (Topic 842) ” which is the final standard on accounting for leases. While both lessees and lessors are affected by the new guidance, the effects on lessees are much more significant. The most significant change for lessees is the requirement under the new guidance to recognize right-of-use assets and lease liabilities for all leases not considered short-term leases. Entities are required to use a modified retrospective approach to adopt the guidance. The amendments in ASU 2016-02 are effective for fiscal years, and interim periods within those years, beginning after December 15, 2018. Early adoption is permitted. To date, the Company has performed the following: A transition team has been established to implement the required changes; the Company has substantially completed its inventory of all leases; an initial assessment of the Company’s leases and embedded leases is underway; and the Company has begun the process of implementing new controls to assist in the measurement of right-of-use assets and lease liabilities and related disclosures. The Company plans to adopt the new lease standard in the first quarter of 2019. The Company expects the adoption will increase the amount of total assets and total liabilities that is reported relative to such amounts prior to adoption and is currently evaluating the impact of adoption on its consolidated statements of operations and comprehensive income.
In August 2017, the FASB issued ASU 2017-12, “Der ivatives and Hedging (Topic 815): Targeted Improvements to Accounting for Hedging Activities .” The ASU simplifies certain aspects of hedge accounting and improves disclosures of hedging arrangements through the elimination of the requirement to separately measure and report hedge ineffectiveness. The ASU generally requires the entire change in the fair value of a hedging instrument to be presented in the same income statement line as the hedged item in order to align financial reporting of hedging relationships with economic results. Entities must apply the amendments to cash flow and net investment hedge relationships that exist on the date of adoption using a modified retrospective approach. The presentation and disclosure requirements must be applied prospectively. The Company is currently evaluating the impact of the adoption of ASU 2017-12, including transition elections and required disclosures, on the Company’s consolidated financial statements and plans to adopt the new standard in the first quarter of 2019.
In July 2018, the FASB issued ASU 2018-09, “ Codification Improvements. ” This ASU does not prescribe any new accounting guidance, but instead makes minor improvements and clarifications of several different FASB Accounting Standards Codification areas based on comments and suggestions made by various stakeholders. Certain updates are applicable immediately while others provide for a transition period to adopt as part of the next fiscal year beginning after December 15, 2018. The Company is currently evaluating this guidance to determine the impact it may have on its consolidated financial statements.
The Company has reviewed all other recently issued, but not yet effective, accounting pronouncements and does not expect the future adoption of any such pronouncements will have a material impact on its financial condition or the results of its operations.
7
Note 3. Revenues
The following table presents the Company’s reportable segment revenues, disaggregated by revenue source. T he Company disaggregates revenue from contracts with customers into major product lines. The Company has determined that disaggregating revenue into these categories achieves the disclosure objective to depict how the nature, amount, timing, and uncertainty of revenue and cash flows are affected by economic factors. As noted in the business segment reporting information in Note 15, the Company’s reportable segments are Terminix, American Home Shield and Franchise Services Group.
At contract inception, the Company assesses the goods and services promised in its contracts with customers and identifies a performance obligation for each promise to transfer to the customer a good or service (or a bundle of goods and services) that is distinct. To identify the performance obligation, the Company considers all of the goods and services promised in the contract regardless of whether they are explicitly stated or are implied by customary business practices.
Terminix segment
Pest control services
Pest control services can be for one-time or recurring services. Revenues from pest control services are recognized at the agreed-upon contractual amount over time as the services are provided, most of which are started and completed within one day, as the customer simultaneously receives and consumes the benefits of the services as they are performed. Upon completion of service, a receivable is recorded related to this revenue as the Company has an unconditional right to invoice and receive payment. Payments are typically received shortly after services have been rendered.
Termite and other services
The Company eradicates termites through the use of baiting systems and non-baiting methods (e.g., fumigation or liquid treatments). Termite services using liquid and baiting systems are sold through annual renewable contracts. The Company also performs other termite and other related services, including wildlife exclusion, crawl space encapsulation and attic insulation, which may be one-time or renewable services. Revenue for termite services are recognized at the agreed-upon contractual amount upon the completion of the service. All termite services are generally started and completed within one day. Upon completion of the service, a receivable is recorded related to this revenue as the Company has an unconditional right to invoice and receive payment. Payments are typically received shortly after services have been rendered.
8
Most termite services can be renewed after the initial year. Revenue on renewal contracts is recognized upon completion of an annual inspection and receipt of payment from the customer which evidences the extension of the contract into a renewal period. Advanced r enewal payments generate a contract liability and are deferred until the related renewal period.
Termite inspection and protection contracts are frequently sold through annual contracts. For these contracts, the Company has a stand ready obligation of which the customer receives and consumes the benefits over the annual period. Associated service costs are expensed as incurred. The Company measures progress toward satisfaction of its stand ready obligation over time using costs incurred as the measure of progress under the input method, which results in straight-line recognition of revenue. Payments are received at the commencement of the contract, which generates a contract liability, or in installments over the contract period.
Sales of products and other
Product revenues are generated from selling products to distributors and franchisees. Revenues from product sales are generally recognized once control of the products transfers to the customer. A receivable is recorded related to these sales as the Company has an unconditional right to invoice and receive payment. Payments are typically received shortly after a customer is invoiced.
American Home Shield segment
Home service plans
Home service plan contracts are sold through annual renewable contracts and customer payments are received at the commencement of the contract or in installments over the contract period, which generates a contract liability. The Company recognizes revenue related to these contracts at the agreed-upon contractual amount over time using the input method in proportion to the costs expected to be incurred in performing services under the contracts. As the costs to fulfill the obligations of the service plan contracts are incurred on an other than straight-line basis, the Company utilizes historical evidence to estimate the expected claims expense and related timing of such costs. This adjustment to the straight-line revenue creates a contract asset or contract liability. The Company regularly reviews its estimates of claims costs and adjusts the estimates when appropriate.
Franchise Services Group segment
Royalty fees
The Company has franchise agreements in its ServiceMaster Restore, ServiceMaster Clean, Merry Maids, Furniture Medic and AmeriSpec businesses. Royalty fee revenue consists principally of sales-based royalties received as part of the consideration for the franchise right and is calculated as a percentage of customer level revenue. Revenue is recognized by the Company at the agreed-upon contractual rates over time as the customer level revenue is generated by the franchisees. A receivable is recognized for an estimate of the unreported royalty fees, which are reported and remitted to the Company in arrears.
Janitorial national accounts
National account revenues are recognized at the agreed-upon contractual amounts over time as services are completed based on contractual arrangements to provide services at the customers’ locations. The Company engages either a franchisee or non-franchisee business to perform the services. Under these agreements, the Company is directly responsible for providing the services and receives payment directly from the customer. A receivable is recorded related to this revenue as the Company has an unconditional right to invoice and receive payment. Payments are typically received shortly after services have been rendered.
Sales of products and other
Product revenues are generated from selling products to franchisees. Revenues from product sales are generally recognized once control of the products transfers to the customer. A receivable is recorded related to these sales as the Company has an unconditional right to invoice and receive payment. Payments are typically received shortly after a customer is invoiced.
Initial franchise fees result from the sale of a franchise license, which includes the use of the name, trademarks and proprietary methods. The franchise license is considered symbolic intellectual property and revenue related to the sale of this right is recognized at the agreed-upon contractual amount over the term of the initial franchise agreement.
Franchisees contribute a percentage of customer level revenue into a national advertising fund managed by the Company. In cases where the Company has ultimate control of the marketing and advertising, the Company recognizes both revenue and expense for the amount earned. Prior to the adoption of ASC 606, this revenue was recorded net of the advertising expense incurred. The impact to revenues as a result of applying ASC 606 was an increase of $4 million and $7 million for the three and six months ended June 30, 2018, respectively.
In addition, the Company has contractual arrangements with several national insurance companies to maintain a call center which receives and provides non-recurring disaster recovery and restoration referrals from the insurers to qualifying franchisees. The Company receives a referral fee from the franchisee. The Company recognizes the referral fee at the agreed-upon contractual amount as revenue in the month the referral is issued.
9
Costs to obtain a contract with a customer
Terminix and American Home Shield
The Company capitalizes the incremental costs of obtaining a contract with a customer, primarily commissions, and recognizes the expense on a straight-line basis over the expected customer relationship period. As of January 1, 2018, the date the Company adopted ASC 606, the Company capitalized a total of $61 million at Terminix and $21 million at American Home Shield in deferred customer acquisition costs related to contracts that were not completed. As of June 30, 2018, the Company had capitalized a total of $71 million at Terminix and $21 million at American Home Shield in deferred customer acquisition costs related to contracts that were not completed. In the three and six months ended June 30, 2018, the amount of amortization was $16 million and $32 million, respectively, at Terminix and $6 million and $11 million, respectively, at American Home Shield. There was no impairment loss in relation to costs capitalized.
Franchise Services Group
The Company capitalizes the incremental costs of selling a new franchise license, primarily commissions, and recognizes the expense over the term of the initial franchise agreement. As of January 1, 2018, the date the Company adopted ASC 606, the Company capitalized a total of $1 million in deferred customer acquisition costs related to contracts that were not completed. As of June 30, 2018, the Company had capitalized a total of $ 1 million in deferred customer acquisition costs related to contracts that were not completed. In the three and six months ended June 30, 2018, the amount of amortization was less than $1 million. There was no impairment loss in relation to costs capitalized.
Contract balances
Timing of revenue recognition may differ from the timing of invoicing to customers. Contracts with customers are generally for a period of one year or less, and are generally renewable. The Company records a receivable related to revenue recognized on services once the Company has an unconditional right to invoice and receive payment in the future related to the services provided. All accounts receivables are recorded within Receivables, less allowances, on the condensed consolidated statements of financial position. The current portion of Notes receivable, which represent amounts financed for customers through the Company’s financing subsidiary, are included within Receivables, less allowances, on the condensed consolidated statement of financial position and totaled $45 million as of June 30, 2018.
Deferred revenue represents a contract liability and is recognized when cash payments are received in advance of the performance of services, including when the amounts are refundable. For Terminix, amounts are recognized as revenue upon completion of services. For American Home Shield, amounts are recognized as revenue in proportion to the costs expected to be incurred in performing services under the Company’s contracts.
Deferred revenue by segment was as follows (in millions):
|
|
|
|
|
|
|
|
|
As of |
|
As of |
||
(In millions) |
|
June 30, 2018 |
|
December 31, 2017 |
||
Terminix |
|
$ |
97 |
|
$ |
90 |
American Home Shield (1) |
|
|
188 |
|
|
573 |
Franchise Services Group (2) |
|
|
11 |
|
|
— |
Total |
|
$ |
297 |
|
$ |
663 |
___________________________________
|
(1) |
|
Includes a net contract liability of $8 million as of June 30, 2018 related to the recognition of American Home Shield monthly pay customer revenue on an other than straight-line basis to match the timing of cost recognition. |
|
(2) |
|
Includes approximately $7 million of Franchise Services Group Deferred revenue included within Other long-term obligations, primarily self-insurance claims on the condensed consolidated statement of financial position as of June 30, 2018 . |
Changes in deferred revenue for the six months ended June 30, 2018 were as follows (in millions):
|
|
|
|
(In millions) |
|
Deferred revenue |
|
Balance, January 1, 2018 |
|
$ |
284 |
Deferral of revenue |
|
|
303 |
Recognition of deferred revenue |
|
|
(299) |
Contract liability (1) |
|
|
8 |
Balance, June 30, 2018 |
|
$ |
297 |
There was approximately $93 million and $196 million of revenue recognized in the three and six months ended June 30, 2018, that was included in the deferred revenue balance as of January 1, 2018.
10
Arrangements with Multiple Performance Obligations
The Company’s contracts with customers may include multiple performance obligations. For such arrangements, we allocate revenue to each performance obligation based on its relative standalone selling price. Any discounts given are allocated to the services to which the discounts relate.
Practical Expedients and Exemptions
The Company offers certain interest-free contracts to customers where payments are received over a period not exceeding one year. Additionally, certain Terminix customers may pay in advance for services and American Home Shield customers have the option to pay for an annual home service plan in advance. The Company does not adjust the promised amount of consideration for the effects of these financing components. At contract inception, the period of time between the performance of services and the customer payment is one year or less.
Revenue is recognized net of any taxes collected from customers which are subsequently remitted to taxing authorities.
The Company does not disclose the value of unsatisfied performance obligations for contracts with an original expected length of one year or less.
Certain non-commission related incremental costs to obtain a contract with a customer are expensed as incurred because the amortization period would have been one year or less. These costs are included in Selling and administrative expenses on the condensed consolidated statements of operations and comprehensive income.
The Company utilizes the portfolio approach to recognize revenue in situations where a portfolio of contracts have similar characteristics. The revenue recognized under the portfolio approach is not materially different than if every individual contract in the portfolio was accounted for separately.
Impact of ASC 606 on the Condensed Consolidated Financial Statements
The Company recorded a net reduction to opening retained earnings of $16 million, net of tax, as of January 1, 2018 due to the cumulative impact of adopting ASC 606. Changes to the condensed consolidated statements of operations and comprehensive income include: i) c osts of obtaining a contract that would have been incurred regardless of whether the contract was obtained, such as direct mail and digital advertising, are now expensed as incurred; ii) initial fees and the related commissions from sales of franchise licenses, previously recognized in the year of the sale, are now recognized over the term of the initial franchise agreement; iii) Franchise Services Group national advertising fund income, previously recorded net of advertising expense incurred for the Company’s advertising programs, will now be reported gross, generally with offsetting increases to both revenue and expense such that there will not be a significant, if any, impact on net income; and iv) commissions costs at Terminix and American Home Shield incremental to a successful sale are deferred and recognized over the expected customer relationship period. Previously, commissions and other sales-related costs were deferred and recognized over the initial contract period.
Changes to the condensed consolidated statements of financial position include: i) the reclassification of Receivables to contract assets which are presented net of contract liabilities within Deferred revenue and ii) the reclassification of Deferred customer acquisition costs to long-term assets as costs are recognized over the expected customer relationship period , which is in excess of one year. Previously, when a customer elected to pay for their home service plan contract on a monthly basis, Receivables and Deferred revenue were recorded based on the total amount due from the customer. Receivables were reduced as amounts were paid, and the Deferred revenue was amortized over the life of the contract. Currently, only the portion of the contract that is due in the current month will be recorded within Receivables.
11
The following tables compare affected lines of the condensed consolidated financial statements as prepared under the provisions of ASC 606 to a presentation of these financial statements under the prior revenue recognition guidance (in millions):
The adoption of ASC 606 had no significant impact on the Company’s cash flows. The aforementioned impacts resulted in offsetting shifts in cash flows from operations between net income and various change in working capital line items.
12
Note 4. Restructuring Charges
The Company incurred restructuring charges of less than $1 million (less than $1 million, net of tax) and $1 million ( $1 million, net of tax) in the three months ended June 30, 2018 and 2017, respectively, and $12 million ( $10 million, net of tax) and $3 million ( $2 million, net of tax) in the six months ended June 30, 2018 and 2017, respectively Restructuring charges were comprised of the following:
___________________________________
|
(1) |
|
For the three and six months ended June 30, 2018, restructuring charges included a $1 million reserve adjustment associated with previous restructuring initiatives and $2 million of severance and other costs. For the six months ended June 30, 2017, these charges included $ 1 million of severance and other costs. Severance and other costs of $1 million were unpaid and accrued as of June 30, 2018, which includes amounts previously accrued as of December 31, 2017. |
|
(2) |
|
The Company has historically made changes on an ongoing basis to enhance capabilities and reduce costs in its corporate functions that provide company-wide administrative services to support operations. In 2017, the Company began taking actions to enhance capabilities and align corporate functions with those required to support the strategic needs as two stand-alone companies in anticipation of the American Home Shield spin-off. For the six months ended June 30, 2018 these charges included $3 million of severance and other costs. Severance and other costs of $ 1 million were unpaid and accrued as of June 30, 2018. |
|
(3) |
|
For the six months ended June 30, 2017, these charges include $1 million of severance costs as part of the severance agreement with the former Chief Financial Officer. Severance and other costs of $3 million were unpaid and accrued as of June 30, 2018, which includes amounts previously accrued as of December 31, 2017. |
|
(4) |
|
For the three months ended June 30, 2018 and 2017, these charges included lease termination and other charges of $1 million and $1 million, respectively, related to the relocation of the Company’s headquarters, which is referred to as the Company’s Global Service Center. For the six months ended June 30, 2018 and 2017, these charges included lease termination and other charges of $7 million and $1 million, respectively, related to the relocation of the Company’s headquarters. Of this amount, $5 million was unpaid and accrued as of June 30, 2018. |
The pretax charges discussed above are reported in Restructuring charges in the unaudited condensed consolidated statements of operations and comprehensive income. Certain restructuring comparative figures in the condensed consolidated statements of cash flows have been reclassified to conform to the current year presentation.
A reconciliation of the beginning and ending balances of accrued restructuring charges, which are included in Accrued liabilities—Other on the unaudited condensed consolidated statements of financial position, is presented as follows:
The company expects substantially all of its accrued restructuring charges to be paid by December 31, 2019.
13
Note 5. American Home Shield Spin-Off
The Company’s financial statements include nonrecurring costs incurred to evaluate, plan and execute the spin-off of the American Home Shield business to Company stockholders. These costs are primarily related to third-party consulting and other incremental costs directly associated with the spin-off process. At December 31, 2017, the Company had $1 million of American Home Shield spin-off charges accrued, and $2 million of prepaid spin-off charges which were recognized during the six months ended June 30, 2018. The Company’s results for the three and six months ended June 30, 2018 include American Home Shield spin-off charges of $8 million ($6 million, net of tax) and $15 million ($12 million, net of tax), respectively. Of this amount, $7 million was unpaid and accrued at June 30, 2018 in Accrued liabilities – Other and Accounts payable on the condensed consolidated statements of financial position. The Company expects substantially all of the American Home Shield spin-off charges to be paid within one year.
The Company expects to incur aggregate charges related to the spin-off of $35 million to $45 million in 2018. In addition, incremental capital expenditures will be required to effect the spin-off in 2018 and will range from $20 million to $30 million, principally reflecting costs to replicate information technology systems historically shared by the Company’s business units.
Note 6. Commitments and Contingencies
The Company carries insurance policies on insurable risks at levels that it believes to be appropriate, including workers’ compensation, automobile and general liability risks. The Company purchases insurance policies from third-party insurance carriers, which typically incorporate significant deductibles or self-insured retentions. The Company is responsible for all claims that fall below the retention limits, exceed our coverage limits or are otherwise not covered by our insurance policies. In determining the Company’s accrual for self-insured claims, the Company uses historical claims experience to establish both the current year accrual and the underlying provision for future losses. This actuarially determined provision and related accrual include known claims, as well as incurred but not reported claims. The Company adjusts its estimate of accrued self-insured claims when required to reflect changes based on factors such as changes in health care costs, accident frequency and claim severity.
A reconciliation of beginning and ending accrued self-insured claims, which are included in Accrued liabilities—Self-insured claims and related expenses and Other long-term obligations, primarily self-insured claims on the condensed consolidated statements of financial position, net of insurance recoverables, which are included in Prepaid expenses and other assets and Other assets on the condensed consolidated statements of financial position, is presented as follows:
The Company also accrues for home service plan claims and termite damage claims in Accrued liabilities-Self-insured claims and related expenses. Accruals for home service plan claims in the American Home Shield business are made based on the Company’s claims experience and actuarial projections. The Company’s actuary performs a reserve analysis utilizing generally accepted actuarial methods that incorporates cumulative historical claims experience and information provided by the Company. The Company regularly reviews its estimates of claims costs and adjust the estimates when appropriate. Reserves are established based on the ultimate cost to settle claims. Home service plan claims take about three months to settle, on average, and substantially all claims are settled within six months. The amount of time required to settle a claim can vary based on a number of factors, including whether a replacement is ultimately required. During the quarter ended June 30, 2018, the Company revised its previous estimate of contract claims and increased contract claims accruals by $12 million. Termite damage claim accruals in the Terminix business are recorded based on both the historical rates of claims incurred within a contract year and the cost per claim. Current activity could differ causing a change in estimates.
The Company has certain liabilities with respect to existing or potential claims, lawsuits and other proceedings. The Company accrues for these liabilities when it is probable that future costs will be incurred and such costs can be reasonably estimated. Any resulting adjustments, which could be material, are recorded in the period the adjustments are identified.
On December 16, 2016, the U.S. Virgin Islands Department of Justice filed a civil complaint in the Superior Court of the Virgin Islands related to a fumigation incident in a matter styled Government of the United States Virgin Islands v. The ServiceMaster Company, LLC, The Terminix International Company Limited Partnership, and Terminix International USVI, LLC. The amount and extent of any potential penalties, fines sanctions, costs and damages that the federal or other governmental authorities may yet impose, investigation or other costs and reputational harm, as well as the impact of any additional civil, criminal or other claims or judicial,
14
administrative or regulatory proceedings resulting from or related to the U.S. Virgin Islands fumigation matter, which could be material, is not currently known, and any such further penalties, fines, sanctions, costs or damages would not be covered under the Company’s general liability policies.
In the ordinary course of conducting business activities, the Company and its subsidiaries become involved in judicial, administrative and regulatory proceedings involving both private parties and governmental authorities. These proceedings include insured and uninsured matters that are brought on an individual, collective, representative and class action basis, or other proceedings involving regulatory, employment, general and commercial liability, automobile liability, wage and hour, environmental and other matters. The Company has entered into settlement agreements in certain cases, including with respect to putative collective and class actions, which are subject to court or other approvals. If one or more of the Company’s settlements are not finally approved, the Company could have additional or different exposure, which could be material. Subject to the paragraphs above, the Company does not expect any of these proceedings to have a material effect on its reputation, business, financial position, results of operations or cash flows; however, the Company can give no assurance that the results of any such proceedings will not materially affect our reputation, business, financial position, results of operations and cash flows.
Note 7. Goodwill and Intangible Assets
Goodwill and indefinite-lived intangible assets are not amortized and are subject to assessment for impairment by applying a fair-value based test on an annual basis or more frequently if circumstances indicate a potential impairment. The Company’s annual assessment date is October 1. There were no goodwill or trade name impairment charges recorded in the three and six months ended June 30, 2018 and 2017. There were no accumulated impairment losses recorded as of June 30, 2018. The table below summarizes the goodwill balances for continuing operations by reportable segment:
The table below summarizes the other intangible asset balances for continuing operations:
___________________________________
|
(1) |
|
Not subject to amortization. |
For the existing intangible assets, the Company anticipates amortization expense for the remainder of 2018 and each of the next five years of $1 5 million, $ 24 million , $ 21 million, $ 1 7 million, $1 4 million and $ 12 million, respectively.
Note 8. Stock-Based Compensation
For the three months ended June 30, 2018 and 2017, the Company recognized stock-based compensation expense of $4 million ( $ 3 million, net of tax) and $4 million ( $2 million, net of tax), respectively. For the six months ended June 30, 2018 and 2017, the Company recognized stock-based compensation expense of $8 million ( $6 million, net of tax) and $9 million ( $5 million, net of tax), respectively. These charges are recorded within Selling and administrative expenses in the condensed consolidated statements of operations and comprehensive income.
As of June 30, 2018 there was $ 32 million of total unrecognized compensation costs related to non-vested stock options, restricted stock units (“RSUs”) and performance shares granted under the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “Omnibus Incentive Plan”). These remaining costs are expected to be recognized over a weighted-average period of 2.4 1 years.
15
Note 9. Comprehensive Income
Comprehensive income, which primarily includes net income (loss), unrealized gain (loss) on derivative instruments and the effect of foreign currency translation gain, is disclosed in the condensed consolidated statements of operations and comprehensive income. Unrealized gains on marketable securities of $3 million ($2 million, net of tax) were included in other comprehensive income prior to the Company’s adoption of ASU 2016-01 on January 1, 2018. Subsequent to the adoption, these unrealized gains have been reclassified to retained earnings. Additionally, stranded tax effects of approximately $4 million resulting from the corporate income tax rate change in U.S. Tax Reform were reclassified upon the Company’s adoption of ASU 2018-02 on January 1, 2018. The income tax effects remaining in AOCI will be released into earnings as the related pre-tax amounts are reclassified to earnings.
The following tables summarize the activity in accumulated other comprehensive income, net of the related tax effects.
___________________________________
|
(1) |
|
Amounts are net of tax. Reclassifications out of accumulated other comprehensive income included the following components for the periods indicated. |
16
Note 10. Supplemental Cash Flow Information
Supplemental information relating to the condensed consolidated statements of cash flows is presented in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
||||
|
|
June 30, |
||||
(In millions) |
|
2018 |
|
2017 |
||
Cash paid for or (received from): |
|
|
|
|
|
|
Interest expense |
|
$ |
70 |
|
$ |
67 |
Income taxes, net of refunds |
|
|
16 |
|
|
41 |
As of June 30, 2018 and December 31, 2017, Cash and cash equivalents of $449 million and $475 million, respectively, and Restricted cash of $89 million and $89 million, respectively, as presented on the condensed consolidated statements of financial position represent the amounts comprising Cash and cash equivalents and restricted cash of $538 million and $ 563 million, respectively, on the condensed consolidated statement of cash flows.
As of June 30, 2017, Cash and cash equivalents of $3 78 million and Restricted cash of $89 million as presented on the condensed consolidated statements of financial position represent the amounts comprising Cash and cash equivalents and restricted cash of $ 467 million on the condensed consolidated statement of cash flows.
The Company acquired $10 million and $ 23 million of property and equipment through capital leases and other non-cash financing transactions in the six months ended June 30, 2018 and 2017, respectively, which have been excluded from the condensed consolidated statements of cash flows as non-cash investing and financing activities.
Note 11. Cash and Marketable Securities
Cash, money market funds and certificates of deposits with maturities of three months or less when purchased are included in Cash and cash equivalents on the condensed consolidated statements of financial position. As of June 30, 2018 and December 31, 2017, the Company’s investments consisted primarily of treasury bills (“Debt securities”) and common equity securities (“Equity securities”). The amortized cost, fair value and gross realized and unrealized gains and losses of the Company’s short- and long-term investments in Debt and Equity securities are as follows:
Following the adoption of ASC 2016-01, the Company accounts for equity securities at fair value with adjustments to fair value recognized in Interest and net investment income in the condensed consolidated statements of operations and comprehensive income. Upon adoption, approximately $3 million ($2 million, net of tax) of unrealized gains were reclassified from Accumulated other comprehensive income to Accumulated deficit. For the three and six months ended June 30, 2018, less than $1 million of unrealized gains and less than $1 million of unrealized losses, respectively, were recorded within Interest and net investment income in the condensed consolidated statements of operations and comprehensive income.
The Company periodically reviews its debt securities to determine whether there has been an other than temporary decline in value. There were no impairment charges due to declines in the value of these investments for the three and six months ended June 30, 2018.
17
Note 12. Long-Term Debt
Long-term debt is summarized in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
|
As of |
||
|
|
June 30, |
|
December 31, |
||
(In millions) |
|
2018 |
|
2017 |
||
Senior secured term loan facility maturing in 2023 (1) |
|
$ |
1,608 |
|
$ |
1,615 |
Revolving credit facility maturing in 2021 |
|
|
— |
|
|
— |
5.125% notes maturing in 2024 (2) |
|
|
740 |
|
|
739 |
7.10% notes maturing in 2018 (3) |
|
|
— |
|
|
79 |
7.45% notes maturing in 2027 (4) |
|
|
171 |
|
|
169 |
7.25% notes maturing in 2038 (4) |
|
|
42 |
|
|
42 |
Vehicle capital leases (5) |
|
|
85 |
|
|
90 |
Other (6) |
|
|
92 |
|
|
54 |
Less current portion |
|
|
(61) |
|
|
(144) |
Total long-term debt |
|
$ |
2,675 |
|
$ |
2,643 |
___________________________________
|
(1) |
|
As of June 30, 2018 and December 31, 2017 presented net of $14 million and $16 million, respectively, in unamortized debt issuance costs and $3 million in unamortized original issue discount paid. |
|
(2) |
|
As of June 30, 2018 and December 31, 2017, presented net of $ 10 million and $11 million, respectively, in unamortized debt issuance costs. |
|
(3) |
|
On March 1, 2018, the Company paid $79 million upon their maturity. |
|
(4) |
|
As of June 30, 2018 and December 31, 2017, collectively presented net of $34 million and $ 37 million, respectively, of unamortized fair value adjustments related to purchase accounting, which increases the effective interest rate from the coupon rates shown above. |
|
(5) |
|
The Company has entered into a fleet management services agreement (the “Fleet Agreement”) which, among other things, allows the Company to obtain fleet vehicles through a leasing program. All leases under the Fleet Agreement are capital leases for accounting purposes. The lease rental payments include an interest component calculated using a variable rate based on one-month LIBOR plus other contractual adjustments and a borrowing margin totaling 2.45 percent. |
|
(6) |
|
As of June 30, 2018, i ncludes approximately $ 52 million of future payments in connection with the Company’s acquisitions of Copesan and other pest control companies as further described in Note 13. |
Interest Rate Swaps
Interest rate swap agreements in effect as of June 30, 2018 are as follows:
|
|
|
|
|
|
|
|
|
|
|
Trade Date |
|
Effective
|
|
Expiration
|
|
Notional
|
|
Fixed
|
|
Floating
|
November 7, 2016 |
|
November 8, 2016 |
|
November 30, 2023 |
|
$650,000 |
|
1.493 |
% |
One month LIBOR |
___________________________________
(1) Before the application of the applicable borrowing margin.
Note 13. Acquisitions
Acquisitions have been accounted for as business combinations using the acquisition method and, accordingly, the results of operations of the acquired businesses have been included in the condensed consolidated financial statements since their dates of acquisition. Asset acquisitions have been accounted for under ASU 2017-01. The assets and liabilities of these businesses were recorded in the financial statements at their estimated fair values as of the acquisition dates.
On March 30, 2018 , the Company acquired all of the outstanding stock of Copesan Services, Inc. (“Copesan”) for an aggregate purchase price of $14 8 million, subject to certain post-closing net working capital adjustments. The acquisition is expected to improve Terminix’s capabilities in commercial pest control as Copesan is expected to provide the Company with significant expertise, system capabilities and processes for delivering pest management solutions to sophisticated commercial customers. The Company funded $104 million at closing using available cash on hand. An additional $35 million of deferred purchase price and up to $10 million earnout contingent on the successful achievement of projected revenue targets are both due to the sellers three years from the acquisition date. Changes in projected revenue would result in a change in the fair value of the recorded earnout obligation. Subsequent changes to the estimated earnout obligation will be recognized in the consolidated statements of operations and comprehensive income when incurred.
18
As a result of this acquisition, the Company recognized a preliminary value of $ 104 million of goodwill, which is primarily attributable to the expected benefits from synergies of the combination with existing businesses and growth opportunities and Copesan’s workforce and is not deductible for tax purposes. Goodwill increased from the preliminary value recognized at March 31, 2018 of $98 million, reflecting the valuation work completed to date and the receipt of additional information.
As of June 30, 2018, the presentation of Copesan in the condensed consolidated financial statements is preliminary and may change in future periods as fair value estimates of the assets acquired are refined during the measurement period. As of June 30, 2018, the Company is still evaluating working capital balances and the fair value and useful lives of the acquired intangible assets. The Company expects to complete the purchase price allocation no later than the fourth quarter of 2018.
During the six months ended June 30, 2018, the Company completed four additional pest control acquisitions which have been accounted for as business combinations and purchased a ServiceMaster Restore master distributor within the Franchise Services Group which has been accounted for as an asset acquisition in accordance with ASU 2017-01. The Company funded $46 million at closing for these acquisitions using available cash on hand. An additional $4 million of deferred purchase price and up to $4 million of earnouts contingent on the successful achievement of projected revenue and earnings targets are due to the sellers between one and five years from the acquisition dates. As a result of these acquisitions, the Company recorded a preliminary value of $38 million of goodwill, and $15 million of other intangibles, primarily customer lists and reacquired rights. As of June 30, 2018, the purchase price allocations for these acquisitions has not been finalized as the Company is still evaluating working capital balances and the fair value and useful lives of the acquired intangible assets. The Company expects to complete the purchase price allocations no later than the fourth quarter of 2018.
During the six months ended June 30, 2017, the Company completed two pest control acquisitions and purchased a ServiceMaster Clean master distributor within the Franchise Services Group. The total purchase price for these acquisitions was $14 million. The Company recorded goodwill of $1 million and other intangibles, primarily reacquired rights, of $13 million related to these acquisitions.
Supplemental cash flow information regarding the acquisitions is as follows:
___________________________________
|
(1) |
|
Includes $12 million of deferred tax liabilities recognized as a result of tax basis differences in intangible assets. |
Acquisition related costs were $1 million and less than $1 million for the six months ended June 30, 2018 and 2017.
Note 14. Income Taxes
As required by ASC 740, “Income Taxes,” the Company computes interim period income taxes by applying an anticipated annual effective tax rate to the Company’s year-to-date income or loss from continuing operations before income taxes, except for significant unusual or infrequently occurring items. The Company’s estimated tax rate is adjusted each quarter in accordance with ASC 740.
The effective tax rate on income from continuing operations was 26.1 percent and 38.0 percent for the three months ended June 30, 2018 and 2017, respectively. The year over year decrease in the effective tax rate on income from continuing operations for the three months ended June 30, 2018 was primarily driven by the reduction in the U.S. federal corporate income tax rate from 35 percent to 21 percent.
The effective tax rate on income from continuing operations was 26.1 percent and 38.0 percent for the six months ended June 30, 2018 and 2017, respectively. The year over year decrease in the effective tax rate on income from continuing operations for the six months ended June 30, 2018 was primarily driven by the reduction in the U.S. federal corporate income tax rate from 35 percent to 21 percent.
As of June 30, 2018 and December 31, 2017, the Company had $15 million and $14 million, respectively, of tax benefits primarily reflected in state tax returns that have not been recognized for financial reporting purposes (“unrecognized tax benefits”). Based on information currently available, it is reasonably possible that over the next 12 month period unrecognized tax benefits may decrease by $2 million as the result of settlements of ongoing audits, statute of limitation expirations or final settlements of uncertain
19
tax positions in multiple jurisdictions. The Company’s policy is to recognize interest income, interest expense and penalties related to its tax positions within the tax provision.
On December 22, 2017, U.S. Tax Reform was signed into law. The Act includes numerous changes in existing tax law, including a permanent reduction in the federal corporate income tax rate from 35 percent to 21 percent, effective January 1, 2018. The adjustments to deferred tax assets and liabilities and the liability related to the transition tax recorded in the period ending December 31, 2017 are provisional amounts. As described below, the Company has made reasonable estimates. At June 30, 2018, the Company has considered all available information and no adjustments to our original provisional amounts were identified. These amounts are subject to change as the Company obtains information necessary to complete the calculations. The Company will recognize any changes to the provisional amounts within (Benefit) Provision for Income Taxes on the Consolidated Statements of Operations and Comprehensive Income as estimates of deferred tax assets and liabilities and interpretations of the application of the Act are refined. The Company expects to complete its analysis of the provisional items described further below during the second half of 2018. The effects of other provisions of the Act are not expected to have a material impact on the Company’s condensed consolidated financial statements.
Corporate Tax Rate Change
The Company is subject to the provisions of the FASB ASC 740-10, Income Taxes, which requires that the effect on deferred tax assets and liabilities of a change in tax rates be recognized in the period the tax rate change was enacted. The Company remeasured deferred tax assets and liabilities based on the new U.S. tax rates at which they are expected to reverse in the future, which is generally 21 percent. The provisional amount recorded at December 31, 2017 relating to the remeasurement of these deferred tax balances was a net reduction of total deferred tax liabilities of $271 million. We are still analyzing certain aspects of the Act and refining our calculations, which could potentially affect these deferred tax balances or potentially give rise to changes in existing deferred tax amounts.
Deferred Tax Analysis
The Act changes the treatment of certain income and expense items for which the Company records deferred tax assets and liabilities. The Company has assessed its valuation of deferred tax assets and liabilities at June 30, 2018, as well as valuation allowance analyses affected by various aspects of the Act. The Company has recorded no provisional amounts related to valuation allowances and revaluation of deferred tax assets affected by various aspects of the Act. However, the Company is still analyzing certain aspects of the Act and refining its calculations, which could potentially affect the valuation of these balances.
Transition Tax
The Act imposes a Transition Tax on undistributed and previously untaxed post-1986 foreign earnings and profits, as determined in accordance with U.S. tax principles, of certain foreign owned corporations of U.S. stockhol ders. The Company recorded a provisional amount at December 31, 2017 for the one-time transition tax liability for the deemed distribution of earnings from our foreign subsidiaries resulting in an increase in income tax expense of less than $1 million. The Company recorded a provisional transition tax amount because certain information related to the computations required to compute the transition tax, including the computation of previously undistributed earnings, is not readily available, and there is limited information from federal and state taxing authorities regarding the application and interpretation of the recently enacted legislation. Accordingly, the Company is still analyzing certain aspects of the transition tax calculations which could potentially affect the amount recorded.
GILTI
Because of the complexity of the new global intangible low-taxed income (“GILTI”) tax rules, we are continuing to evaluate this provision of the Act and the application of ASC 740. Under U.S. GAAP, we are allowed to make an accounting policy choice. Our selection of an accounting policy with respect to the new GILTI tax rules will depend, in part, on analyzing our global income to determine whether we expect to have future U.S. inclusions in taxable income related to GILTI and, if so, what the impact is expected to be. The Company is not yet able to reasonably estimate the effect of this provision of the Act. Therefore, the Company has not made any adjustments related to potential GILTI tax in our financial statements and have not made a policy decision regarding whether to record deferred taxes on GILTI.
Note 15. Business Segment Reporting
The business of the Company is conducted through three reportable segments: Terminix, American Home Shield and Franchise Services Group.
In accordance with accounting standards for segments, the Company’s reportable segments are strategic business units that offer different services. The Terminix segment provides termite and pest control services to residential and commercial customers and distributes pest control products. The American Home Shield segment provides home service plans for home systems and appliances. The Franchise Services Group segment provides residential and commercial disaster restoration, janitorial and cleaning services through franchises primarily under the ServiceMaster, ServiceMaster Restore and ServiceMaster Clean brand names, home cleaning services through franchises primarily under the Merry Maids brand name, cabinet and wood furniture repair primarily under the Furniture Medic brand name and home inspection services primarily under the AmeriSpec brand name. Corporate includes SMAC, the Company’s financing subsidiary exclusively dedicated to providing financing to its franchisees and retail customers of its
20
operating units, and the Company’s headquarters operations (substantially all of which costs are allocated to the Company’s reportable segments), which provide various technology, marketing, finance, legal and other support services to the reportable segments. The composition of the Company’s reportable segments is consistent with that used by the Company’s chief operating decision maker (the “CODM”) to evaluate performance and allocate resources.
Information regarding the accounting policies used by the Company is described in the Company’s 2017 Form 10-K. The Company derives substantially all of its revenue from customers and franchisees in the United States with approximately two percent generated in foreign markets. Operating expenses of the business units consist primarily of direct costs and indirect costs allocated from Corporate.
The Company uses Reportable Segment Adjusted EBITDA as its measure of segment profitability. Accordingly, the CODM evaluates performance and allocates resources based primarily on Reportable Segment Adjusted EBITDA. Reportable Segment Adjusted EBITDA is defined as net income before: unallocated corporate expenses; gain from discontinued operations, net of income taxes; (benefit) provision for income taxes; interest expense; depreciation and amortization expense; fumigation related matters; insurance reserve adjustment; non-cash stock-based compensation expense; restructuring charges; American Home Shield spin-off charges; loss on extinguishment of debt; and non-cash impairment of software and other related costs. The Company’s definition of Reportable Segment Adjusted EBITDA may not be calculated or comparable to similarly titled measures of other companies. The Company believes Reportable Segment Adjusted EBITDA is useful for investors, analysts and other interested parties as it facilitates company-to-company operating performance comparisons by excluding potential differences caused by variations in capital structures, taxation, the age and book depreciation of facilities and equipment, restructuring initiatives and equity-based, long-term incentive plans.
Information for continuing operations for each reportable segment and Corporate is presented below:
___________________________________
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(1) |
|
Presented below is a reconciliation of Net Income to Reportable Segment Adjusted EBITDA: |
21
Note 16. Fair Value Measurements
The period-end carrying amounts of cash and cash equivalents, receivables, restricted cash, accounts payable and accrued liabilities approximate fair value because of the short maturity of these instruments. The period-end carrying amounts of long-term notes receivable approximate fair value as the effective interest rates for these instruments are comparable to period-end market rates. The period-end carrying amounts of short- and long-term marketable securities also approximate fair value, with unrealized gains and losses reported in interest and net investment income in the condensed consolidated statements of operations and comprehensive income. The carrying amount of total debt was $ 2,737 million and $ 2,787 million, and the estimated fair value was $2,79 5 million and $2,88 8 million as of June 30, 2018 and December 31, 2017, respectively. The fair value of the Company’s debt is estimated based on available market prices for the same or similar instruments which are considered significant other observable inputs (Level 2) within the fair value hierarchy. The fair values presented reflect the amounts that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The fair value estimates presented in this report are based on information available to the Company as of June 30, 2018 and December 31, 2017.
The Company has estimated the fair value of its financial instruments measured at fair value on a recurring basis using the market and income approaches. For investments in marketable securities, deferred compensation trust assets and derivative contracts, which are carried at their fair values, the Company’s fair value estimates incorporate quoted market prices, other observable inputs (for example, forward interest rates) and unobservable inputs (for example, forward commodity prices) at the balance sheet date.
Interest rate swap contracts are valued using forward interest rate curves obtained from third-party market data providers. The fair value of each contract is the sum of the expected future settlements between the contract counterparties, discounted to present value. The expected future settlements are determined by comparing the contract interest rate to the expected forward interest rate as of each settlement date and applying the difference between the two rates to the notional amount of debt in the interest rate swap contracts.
Fuel swap contracts are valued using forward fuel price curves obtained from third-party market data providers. The fair value of each contract is the sum of the expected future settlements between the contract counterparties, discounted to present value. The expected future settlements are determined by comparing the contract fuel price to the expected forward fuel price as of each settlement date and applying the difference between the contract and expected prices to the notional gallons in the fuel swap contracts. The Company regularly reviews the forward price curves obtained from third-party market data providers and related changes in fair value for reasonableness utilizing information available to the Company from other published sources.
The Company has not changed its valuation techniques for measuring the fair value of any financial assets and liabilities during the year. Transfers between levels, if any, are recognized at the end of the reporting period. There were no significant transfers between levels during each of the six month periods ended June 30, 2018 and 2017.
We account for these investments at fair value with adjustments to fair value recognized in unrealized gain/(loss) on investments in our condensed consolidated statements of operations and comprehensive income as a non-operating expense.
22
The carrying amount and estimated fair value of the Company’s financial instruments that are recorded at fair value on a recurring basis for the periods presented are as follows:
A reconciliation of the beginning and ending fair values of financial instruments valued using significant unobservable inputs (Level 3) on a recurring basis is presented as follows:
23
The following tables present information relating to the significant unobservable inputs of the Company’s Level 3 financial instruments:
___________________________________
|
(1) |
|
Forward prices per gallon were derived from third-party market data providers. A decrease in the forward price would result in a decrease in the fair value of the fuel swap contracts. |
The Company uses derivative financial instruments to manage risks associated with changes in fuel prices and interest rates. The Company does not hold or issue derivative financial instruments for trading or speculative purposes. In designating its derivative financial instruments as hedging instruments under accounting standards for derivative instruments, the Company formally documents the relationship between the hedging instrument and the hedged item, as well as the risk management objective and strategy for the use of the hedging instrument. This documentation includes linking the derivatives to forecasted transactions. The Company assesses at the time a derivative contract is entered into, and at least quarterly thereafter, whether the derivative item is effective in offsetting the projected changes in cash flows of the associated forecasted transactions. All of the Company’s designated hedging instruments are classified as cash flow hedges.
The Company has historically hedged a significant portion of its annual fuel consumption. The Company has also historically hedged the interest payments on a portion of its variable rate debt through the use of interest rate swap agreements. All of the Company’s fuel swap contracts and interest rate swap contracts are classified as cash flow hedges, and, as such, the hedging instruments are recorded on the condensed consolidated statements of financial position as either an asset or liability at fair value, with the effective portion of changes in the fair value attributable to the hedged risks recorded in accumulated other comprehensive income. Any change in the fair value of the hedging instrument resulting from ineffectiveness, as defined by accounting standards, is recognized in current period earnings. Cash flows related to fuel and interest rate derivatives are classified as operating activities in the condensed consolidated statements of cash flows.
Ineffective portions of derivative instruments designated in accordance with accounting standards as cash flow hedge relationships were insignificant during the six months ended June 30, 2018. As of June 30, 2018, the Company had fuel swap contracts to pay fixed prices for fuel with an aggregate notional amount of $ 29 million, maturing through 2019. Under the terms of its fuel swap contracts, the Company is required to post collateral in the event that the fair value of the contracts exceeds a certain agreed upon liability level and in other circumstances required by the counterparty. As of June 30, 2018, the Company had posted $2 million in letters of credit as collateral under its fuel hedging program, which were issued under the Revolving Credit Facility.
The effective portion of the gain or loss on derivative instruments designated and qualifying as cash flow hedging instruments is recorded in accumulated other comprehensive income. These amounts are reclassified into earnings in the same period or periods during which the hedged forecasted debt interest settlement or the fuel settlement affects earnings. See Note 9 to the condensed consolidated financial statements for the effective portion of the gain or loss on derivative instruments recorded in accumulated other comprehensive income and for the amounts reclassified out of accumulated other comprehensive income and into earnings. The amount expected to be reclassified into earnings during the next 12 months includes unrealized gains and losses related to open fuel hedges and interest rate swaps. Specifically, as the underlying forecasted transactions occur during the next 12 months, the hedging gains and losses in accumulated other comprehensive income expected to be recognized in earnings is a gain of $6 million, net of tax, as of June 30, 2018 . The amounts that are ultimately reclassified into earnings will be based on actual fuel prices and interest rates at the time the positions are settled and may differ materially from the amount noted above.
24
Note 17. Earnings Per Share
Basic earnings per share is computed by dividing net income by the weighted average number of shares of common stock outstanding. Diluted earnings per share is computed by dividing net income by the weighted-average number of shares of common stock outstanding during the period, increased to include the number of shares of common stock that would have been outstanding had potential dilutive shares of common stock been issued. The dilutive effect of stock options, RSUs and performance shares are reflected in diluted earnings per share by applying the treasury stock method.
A reconciliation of the amounts included in the computation of basic earnings per share from continuing operations and diluted earnings per share from continuing operations is as follows:
___________________________________
|
(1) |
|
Options to purchase 0.4 million and 1.3 million shares for the three months ended June 30, 2018 and 2017, respectively, and 0.4 million and 1.3 million shares for the six months ended June 30, 2018 and 2017, respectively, were not included in the diluted earnings per share calculation because their effect would have been anti-dilutive. |
25
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following information should be read in conjunction with the unaudited condensed consolidated financial statements and related notes included in Item 1 of this Quarterly Report on Form 10-Q. The following discussion may contain forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in these forward-looking statements. Factors that could cause or contribute to these differences include those factors discussed below and elsewhere in this report, particularly in “—Information Regarding Forward-Looking Statements.”
Overview
Our core services include termite and pest control, home service plans, disaster restoration, janitorial, residential cleaning, cabinet and wood furniture repair and home inspection under the following leading brands: Terminix, American Home Shield, ServiceMaster Restore, ServiceMaster Clean, Merry Maids, Furniture Medic and AmeriSpec. Our operations for the periods presented in this report are organized into three reportable segments: Terminix, American Home Shield and Franchise Services Group.
American Home Shield Spin-off
On July 26, 2017, we announced that we intend to separate our American Home Shield business from our Terminix and Franchise Services Group businesses by means of a spin-off of the American Home Shield business to Company stockholders, resulting in two publicly traded companies. The spin-off is designed to create two independent companies, each with an enhanced strategic focus, simplified operating structure, distinct investment identity and strong financial profile. The transaction is expected to be completed late in the third quarter of 2018, subject to satisfaction of customary conditions, including the effectiveness of a Registration Statement on Form 10 and final approval by our board of directors. We have received a favorable private letter ruling from the IRS regarding the tax-free treatment of the distribution to our stockholders.
Our financial statements include nonrecurring costs incurred to evaluate, plan and execute the spin-off. These costs are primarily related to third-party consulting and other incremental costs directly associated with the spin-off process. Our results for the six months ended June 30, 2018 include charges of $15 million related to the spin-off. We expect to incur charges of $35 million to $45 million in 2018 related to the spin-off. In addition, we expect incremental capital expenditures will be required to effect the spin-off in 2018 and will range from $20 million to $30 million, principally reflecting costs to replicate information technology systems historically shared by our business units.
The separation into two independent public companies is expected to result in increased operating costs which could be material to our results of operations. These increased operating costs are primarily associated with corporate functions such as finance, legal, IT and human resources. We are currently evaluating the optimal structure of corporate functions to support the strategic objectives of these two separate publicly traded companies subsequent to the spin-off and estimate the increased operating costs will be approximately $5 million for SpinCo (American Home Shield) and approximately $4 million for RemainCo (post-spin Terminix and Franchise Services Group) in 2018. Dis-synergies for the three and six months ended June 30, 2018 were $1 million. For full-year 2019, we currently project dis-synergies of approximately $6 million for SpinCo and approximately $14 million for RemainCo.
On May 3, 2018, the Company announced the appointment of Rex Tibbens as President and Chief Executive Officer of American Home Shield effective May 15, 2018. Upon completion of the spin-off, Mr. Tibbens will continue to lead American Home Shield. On July 25, 2018, the Company also announced the appointment of Brian K. Turcotte as Senior Vice President and Chief Financial Officer of American Home Shield. Mr. Turcotte had previously been serving as ServiceMaster’s Treasurer and Vice President, Investor Relations.
Key Business Metrics
We focus on a variety of indicators and key operating and financial metrics to monitor the financial condition and performance of the continuing operations of our businesses. These metrics include:
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revenue, |
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operating expenses, |
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net income, |
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earnings per share, |
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Adjusted EBITDA, |
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organic revenue growth, |
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customer retention rates, and |
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growth in customer counts. |
To the extent applicable, these measures are evaluated with and without impairment, restructuring and other charges that management believes are not indicative of the earnings capabilities of our businesses. We also focus on measures designed to monitor cash flow, including net cash provided from operating activities from continuing operations and free cash flow.
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Revenue. Our revenue results are primarily a function of the volume and pricing of the services and products provided to our customers by our businesses as well as the mix of services and products provided across our businesses. The volume of our revenue in Terminix and American Home Shield is impacted by new unit sales, the retention of our existing customers and acquisitions. We expect to continue our tuck-in acquisition program at Terminix and to periodically evaluate other strategic acquisitions. Revenue results in the Franchise Services Group are driven principally by royalty fees earned from our franchisees. We serve both residential and commercial customers, principally in the United States. In 2017, approximately 98 percent of our revenue was generated by sales in the United States.
Operating Expenses. In addition to the impact of changes in our revenue results, our operating results are affected by, among other things, the level of our operating expenses. A number of our operating expenses are subject to inflationary pressures, such as fuel, chemicals, raw materials, wages and salaries, employee benefits and health care, vehicles, contractor costs, home systems, appliances and repair parts, self-insurance costs and other insurance premiums, as well as various regulatory compliance costs.
Net Income and Earnings Per Share . Basic earnings per share is computed by dividing net income by the weighted-average number of shares of common stock outstanding. Diluted earnings per share is computed by dividing net income by the weighted-average number of shares of common stock outstanding during the period, increased to include the number of shares of common stock that would have been outstanding had potential dilutive shares of common stock been issued. The dilutive effect of stock options and RSUs are reflected in diluted net income per share by applying the treasury stock method. The presentation of basic and diluted earnings per share provides GAAP measures of performance which are useful for investors, analysts and other interested parties in company-to-company operating performance comparisons.
Adjusted EBITDA. We evaluate performance and allocate resources based primarily on Adjusted EBITDA. We define Adjusted EBITDA as net income before: depreciation and amortization expense; 401(k) Plan corrective contribution; fumigation related matters; insurance reserve adjustment; non-cash stock-based compensation expense; restructuring charges; American Home Shield spin-off charges; non-cash impairment of software and other related costs; (gain) loss from discontinued operations, net of income taxes; provision for income taxes; loss on extinguishment of debt and interest expense . We believe Adjusted EBITDA is useful for investors, analysts and other interested parties as it facilitates company-to-company operating performance comparisons by excluding potential differences caused by variations in capital structures, taxation, the age and book depreciation of facilities and equipment, restructuring initiatives and equity-based, long-term incentive plans.
Organic Revenue Growth. We evaluate organic revenue growth to track performance of the business, including the impacts of sales, pricing, new service offerings and other growth initiatives. Organic revenue growth excludes revenue from acquired customers for 12 months following the acquisition date.
Customer Retention Rates and Customer Counts Growth. Where applicable, we report our customer retention rates and growth in customer counts in order to track the performance of the business. Customer counts represent our recurring customer base, which includes customers with active contracts for recurring services. Retention rates are calculated as the ratio of ending customer counts to the sum of beginning customer counts, new sales and acquired accounts for the applicable period. These measures are presented on a rolling, 12-month basis in order to avoid seasonal anomalies. See “—Segment Review.”
Seasonality
We have seasonality in our business, which drives fluctuations in revenue and Adjusted EBITDA for interim periods. In 2017, approximately 22 percent, 28 percent, 27 percent and 23 percent of our revenue and approximately 20 percent, 31 percent, 29 percent and 20 percent of our Adjusted EBITDA was recognized in the first, second, third and fourth quarters, respectively.
Effect of Weather Conditions
The demand for our services and our results of operations are also affected by weather conditions, including the seasonal nature of our termite and pest control services, home inspection services and disaster restoration services. Weather conditions which have a potentially unfavorable impact to our business include cooler temperatures or droughts which can impede the development of termite swarms and lead to lower demand for our termite control services; and extreme temperatures which can lead to an increase in service requests related to home systems. For example, in the third quarter of 2016, we experienced an increase in contract claims cost at American Home Shield driven by a higher number of HVAC work orders driven by high temperatures, and in the third quarter of 2017, our Terminix business was negatively impacted by hurricanes Harvey and Irma, which resulted in 53 branches, primarily in Texas and Florida, being temporarily closed for a period of time during August and September. Weather conditions which have a potentially favorable impact to our business include mild winters which can lead to higher demand for termite and pest control services; mild winters or summers which can lead to lower home systems claim frequency; and severe storms which can lead to an increase in demand for disaster restoration services. For example, in the third and fourth quarters of 2017, our ServiceMaster Restore business saw a significant increase in royalty fees related to hurricanes Harvey and Irma and wildfires.
Franchises
Franchises are important to the Terminix, ServiceMaster Restore, ServiceMaster Clean, Merry Maids, Furniture Medic and AmeriSpec businesses. Total profits from our franchised operations were $24 million and $22 million for the three months ended June 30, 2018 and 2017, respectively and $45 million and $44 million for the six months ended June 30, 2018 and 2017, respectively. Nearly all of the franchise fees received by our Franchise Services Group segment are derived from the ServiceMaster Restore,
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ServiceMaster Clean and Merry Maids businesses. Franchise fees from our Terminix franchisees represented less than one percent of Terminix revenue for the six months ended June 30, 2018. We evaluate the performance of our franchise businesses based primarily on operating profit before corporate general and administrative expenses, interest expense and amortization of intangible assets. Franchise agreements entered into in the course of these businesses are generally for a term of five years. The majority of these franchise agreements are renewed prior to expiration. Internationally, we have license agreements, whereby licensees provide services under our brand names that would ordinarily be provided by franchisees in the United States. The majority of international licenses are for 10 ‑year terms.
Results of Operations
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Three Months Ended |
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June 30, |
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% of Revenue |
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(In millions) |
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2018 |
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2017 |
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2018 vs. 2017 |
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2018 |
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2017 |
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Revenue |
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$ |
874 |
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$ |
807 |
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8 |
% |
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100 |
% |
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100 |
% |
Cost of services rendered and products sold |
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467 |
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415 |
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13 |
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53 |
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51 |
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Selling and administrative expenses |
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225 |
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206 |
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9 |
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26 |
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26 |
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Amortization expense |
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7 |
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7 |
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4 |
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1 |
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1 |
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Fumigation related matters |
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— |
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1 |
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* |
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— |
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— |
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Restructuring charges |
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— |
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1 |
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* |
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— |
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— |
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American Home Shield spin-off charges |
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8 |
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— |
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* |
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1 |
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— |
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Interest expense |
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37 |
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38 |
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— |
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4 |
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5 |
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Interest and net investment income |
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(1) |
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(1) |
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32 |
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— |
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— |
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Loss on extinguishment of debt |
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— |
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3 |
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* |
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— |
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— |
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Income from Continuing Operations before Income Taxes |
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130 |
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137 |
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(5) |
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15 |
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17 |
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Provision for income taxes |
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34 |
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52 |
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(35) |
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4 |
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6 |
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Income from Continuing Operations |
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96 |
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85 |
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13 |
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11 |
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11 |
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Gain from discontinued operations, net of income taxes |
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— |
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— |
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* |
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— |
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— |
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Net Income |
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$ |
96 |
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$ |
85 |
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13 |
% |
|
11 |
% |
|
11 |
% |
________________________________
* not meaningful
28
Revenue
We reported revenue of $874 million and $807 million for the three months ended June 30, 2018 and 2017, respectively, and revenue of $1,549 million and $1,450 million for the six months ended June 30, 2018 and 2017, respectively. A summary of changes in revenue for each of our reportable segments and Corporate is included in the table below. See “—Segment Review” for a discussion of the drivers of the year-over-year changes.
_________________________________
|
(1) |
|
Includes growth from acquisitions of approximately $25 million and $26 million for the three and six months ended June 30, 2018 , respectively . |
Cost of Services Rendered and Products Sold
We reported cost of services rendered and products sold of $467 million and $415 million for the three months ended June 30, 2018 and 2017, respectively, and $829 million and $761 million for the six months ended June 30, 2018 and 2017, respectively. The following table provides a summary of changes in cost of services rendered and products sold for each of our reportable segments and Corporate:
_________________________________
At Terminix, the impact of change in revenue reflects the impact of the Copesan acquisition and other acquisitions completed during the year. The decrease in bad debt expense was driven by enhanced credit policies and collection rates . The decrease in chemicals and materials was driven by sourcing savings.
29
At American Home Shield, the increase in contract claims costs includes an adjustment of $12 million related to adverse development of contract claims costs originally estimated and recorded in the first quarter of 2018 and the second half of 2017. Accruals for home service plan claims are made based on our historical claims experience and actuarial projections. Our actuary performs a reserve analysis utilizing generally accepted actuarial methods that incorporates cumulative historical claims experience and information provided by us. We regularly review our estimates of claims costs and adjust the estimates when appropriate. The increase in contract claims costs in the second quarter, and the change in our previous contract claims costs reserve estimates, were principally driven by a higher mix of appliance replacements versus repairs driven by parts availability. In addition to the $12 million of higher claims costs from periods prior to the second quarter of 2018, the impact of higher appliance replacements in the second quarter increased claims costs by $4 million. The increase in contract claims costs in the second quarter also includes normal inflationary pressure on the underlying costs of repairs totaling $3 million and a higher number of work orders driven by significantly warmer summer temperatures in 2018, which increased claims costs by $3 million.
The decrease in the Corporate insurance program expense was primarily attributable to favorable claims trends in our automobile, general liability and workers’ compensation program, which may or may not continue.
_________________________________
At Terminix, the impact of change in revenue reflects the impact of the Copesan acquisition and other acquisitions completed during the year. The decrease in production labor was driven by the realization of past investments in field operations. The decrease in bad debt expense was driven by enhanced credit policies and collection rates . The decrease in chemicals and materials was driven by sourcing savings.
At American Home Shield, the increase in contract claims costs includes an adjustment of $6 million related to the adverse development of contract claim costs originally estimated and recorded in the second half of 2017 , principally driven by a higher mix of appliance replacements versus repairs driven by parts availability. We estimate the impact of higher appliance replacements increased claims costs by $7 million. The increase in contract claims costs also includes normal inflationary pressure on the underlying costs of repairs totaling $7 million and a higher number of work orders driven by colder winter temperatures in the first quarter and significantly warmer summer temperatures in the second quarter of 2018, which increased claims costs by $8 million.
The decrease in the Corporate insurance program expense was primarily attributable to favorable claims trends in our automobile, general liability and workers’ compensation program, which may or may not continue.
30
Selling and Administrative Expenses
We reported selling and administrative expenses of $225 million and $206 million for the three months ended June 30, 2018 and 2017, respectively, and $422 million and $392 million for the six months ended June 30, 2018 and 2017, respectively. For the three months ended June 30, 2018 and 2017, selling and administrative expenses comprised general and administrative expenses of $82 million and $74 million, respectively, and selling and marketing expenses of $143 million and $132 million, respectively. For the six months ended June 30, 2018 and 2017, selling and administrative expenses comprised general and administrative expenses of $159 million and $151 million, respectively, and selling and marketing expenses of $263 million and $241 million, respectively. The following table provides a summary of changes in selling and administrative expenses for each of our reportable segments and Corporate:
The decrease in sales and marketing costs at Terminix was driven by a change in the timing of our recognition of sales costs upon our adoption of ASC 606 on January 1, 2018 of $6 million, partially offset by an increase in sales and marketing costs driven by targeted investments to drive sales growth . Terminix incurred incremental selling and administrative expenses as a result of the Copesan acquisition and other acquisitions, including deal-related costs of approximately $1 million.
At American Home Shield, the increase in sales and marketing costs was driven by targeted spending to drive sales growth . The increase in customer service costs was an incremental investment in customer care center costs to deliver a new level of customer service. Incremental ongoing costs related to the spin-off of American Home Shield of $1 million were incurred, which primarily related to the separation of information technology systems historically shared by our business units.
At Franchise Services Group, the increase in sales and marketing costs was driven by the recognition of national advertising fund contributions from franchisees as revenue upon our adoption of ASC 606 on January 1, 2018. Prior to 2018, contributions to the national advertising fund made by our franchisees were treated as an offset to advertising expense.
The increase in sales and marketing costs at Terminix was driven by targeted investments to drive sales growth, partially offset by a change in the timing of our recognition of sales costs upon our adoption of ASC 606 on January 1, 2018 of $4 million. Terminix incurred incremental selling and administrative expenses as a result of the Copesan acquisition and other acquisitions, including deal-related costs of approximately $1 million.
At American Home Shield, the increase in sales and marketing costs was driven by targeted spending to drive sales growth . The increase in customer service costs was an incremental investment in customer care center costs to deliver a new level of customer service. Incremental ongoing costs related to the spin-off of American Home Shield of $1 million were incurred, which primarily related to the separation of information technology systems historically shared by our business units.
At Franchise Services Group, the increase in sales and marketing costs was driven by the recognition of national advertising fund contributions from franchisees as revenue upon our adoption of ASC 606 on January 1, 2018. Prior to 2018, contributions to the national advertising fund made by our franchisees were treated as an offset to advertising expense.
31
Amortization Expense
Amortization expense was $7 million and $7 million in the three months ended June 30, 2018 and 2017, respectively, and $12 million and $14 million in the six months ended June 30, 2018 and 2017, respectively.
Fumigation Related Matters
We recorded a charge of $1 million in the three months ended June 30, 2017 and $2 million in the six months ended June 30, 2017 for fumigation related matters. We recorded charges of less than $1 million for remaining fumigation related matters in the three and six months ended June 30, 2018.
Impairment of Software and Other Related Costs
We recorded an impairment charge of $2 million in the six months ended June 30, 2017 relating to our decision to replace certain software. There were no impairments of software and other related costs recorded in the three and six months ended June 30, 2018, or in the three months ended June 30, 2017.
Restructuring Charges
We incurred restructuring charges of less than $1 million and $1 million in the three months ended June 30, 2018 and 2017, respectively, and $12 million and $3 million in the six months ended June 30, 2018 and 2017, respectively. Restructuring charges were comprised of the following:
___________________________________
|
(1) |
|
For the three and six months ended June 30, 2018, restructuring charges included a $1 million reserve adjustment associated with previous restructuring initiatives and $2 million of severance and other costs. For the six months ended June 30, 2017, these charges included $ 1 million of severance and other costs. |
|
(2) |
|
We have historically made changes on an ongoing basis to enhance capabilities and reduce costs in our corporate functions that provide company-wide administrative services to support operations. In 2017, we began taking actions to enhance capabilities and align corporate functions with those required to support the strategic needs as two stand-alone companies in anticipation of the American Home Shield spin-off. For the six months ended June 30, 2018 these charges included $3 million of severance and other costs. |
|
(3) |
|
For the six months ended June 30, 2017, these charges include $1 million of severance costs as part of the severance agreement with the former Chief Financial Officer. |
|
(4) |
|
For the three months ended June 30, 2018 and 2017, these charges included lease termination and other charges of $1 million and $1 million, respectively, related to the relocation of our headquarters, which is referred to as our Global Service Center. For the six months ended June 30, 2018 and 2017, these charges included lease termination and other charges of $7 million and $1 million, respectively, related to the relocation of our headquarters. |
American Home Shield Spin-Off Charges
Our financial statements include nonrecurring costs incurred to evaluate, plan and execute the spin-off of American Home Shield to company stockholders. These costs are primarily related to third-party consulting and other incremental costs directly associated with the spin-off process. At December 31, 2017, we had $1 million of American Home Shield spin-off charges accrued, and $2 million of prepaid spin-off charges which were recognized during the six months ended June 30, 2018. Our results for the three and six months ended June 30, 2018 include American Home Shield spin-off charges of $8 million and $15 million, respectively.
We expect to incur aggregate charges related to the spin-off of $35 million to $45 million in 2018. In addition, incremental capital expenditures will be required to effect the spin-off in 2018 and will range from $20 million to $30 million, principally reflecting costs to replicate information technology systems historically shared by our business units.
Interest Expense
Interest expense was $37 million and $38 million in the three months ended June 30, 2018 and 2017, respectively, and $75 million in both the six month months ended June 30, 2018 and 2017.
32
Interest and Net Investment Income
Interest and net investment income was $1 million and $1 million for the three months ended June 30, 2018 and 2017, respectively, and $2 million and $1 million for the six months ended June 30, 2018 and 2017, respectively, and comprised net investment gains and losses, interest income and dividend income realized on the American Home Shield investment portfolio and interest income on other cash balances.
Income from Continuing Operations before Income Taxes
Income from continuing operations before income taxes was $130 million and $137 million for the three months ended June 30, 2018 and 2017, respectively, and $185 million and $199 million for the six months ended June 30, 2018 and 2017, respectively. The change in income from continuing operations before income taxes primarily reflects the net effect of year-over-year changes in the following items:
___________________________________
|
(1) |
|
Represents the net change in Adjusted EBITDA as described in “—Segment Review.” |
|
(2) |
|
Represents the net change in depreciation expense, driven by investments in vehicles and technology. |
|
(3) |
|
Represents the net change in restructuring expense as described in “Restructuring Charges.” |
|
(4) |
|
Represents the net change in American Home Shield spin-off charges as described in “American Home Shield Spin-Off Charges.” |
|
(5) |
|
Primarily represents the net change in loss on extinguishment of debt, fumigation related matters, amortization expense and impairment of software and other related costs. |
Provision for Income Taxes
The effective tax rate on income from continuing operations was 26.1 percent and 38.0 percent for the three months ended June 30, 2018 and 2017, respectively. The effective tax rate on income from continuing operations for the three months ended June 30, 2018 was primarily affected by the implementation of U.S. Tax Reform.
The effective tax rate on income from continuing operations was 26.1 percent and 38.0 percent for the six months ended June 30, 2018 and 2017, respectively. The effective tax rate on income from continuing operations for the six months ended June 30, 2018 was primarily affected by the implementation of U.S. Tax Reform.
Net Income
Net income was $96 million and $85 million for the three months ended June 30, 2018 and 2017, respectively, and $136 million and $124 million for the six months ended June 30, 2018 and 2017, respectively
33
Segment Review
The following business segment reviews should be read in conjunction with the required footnote disclosures presented in the notes to the condensed consolidated financial statements included in this report.
Revenue and Adjusted EBITDA by reportable segment and for Corporate are as follows:
___________________________________
* not meaningful
|
(1) |
|
See Note 15 to the condensed consolidated financial statements for our definition of Adjusted EBITDA and a reconciliation of Net Income to Reportable Segment Adjusted EBITDA. |
|
(2) |
|
Represents unallocated corporate expenses. |
Terminix Segment
Three Months Ended June 30, 2018 Compared to Three Months Ended June 30, 2017
The Terminix segment, which provides termite and pest control services to residential and commercial customers and distributes pest control products, reported a six percent increase in revenue and a four percent increase in Adjusted EBITDA for the three months ended June 30, 2018 compared to the three months ended June 30, 2017.
Revenue
Revenue by service line is as follows:
Pest control revenue for the three months ended June 30, 2018 increased 11 percent compared to prior year, primarily due to the impact of the Copesan acquisition.
Termite revenue, including wildlife exclusion, crawl space encapsulation and attic insulation, which are managed as a component of our termite line of business, remained consistent with prior year, reflecting an increase in core termite completions, wildlife exclusion and attic insulation, offset by a decline in termite renewals. In the three months ended June 30, 2018, termite renewal revenue comprised 46 percent of total termite revenue, while the remainder consisted of termite new unit revenue. Termite activity is unpredictable in its nature. Factors that can impact termite activity include conducive weather conditions and consumer awareness of termite swarms.
34
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
|
|
|
|
(In millions) |
|
|
|
Three Months Ended June 30, 2017 |
|
$ |
105 |
Impact of change in revenue |
|
|
7 |
Acquisition selling and administrative expenses |
|
|
(5) |
Bad debt |
|
|
2 |
Chemicals and materials |
|
|
3 |
Fuel prices |
|
|
(1) |
Sales and marketing |
|
|
1 |
Incentive compensation |
|
|
(2) |
Other |
|
|
(2) |
Three Months Ended June 30, 2018 |
|
$ |
109 |
The impact of the change in revenue on Adjusted EBITDA was driven by the increase in relatively low margin revenue from our acquisition of Copesan. As we continue to drive synergies from Copesan and other acquisitions, leveraging world-class service capabilities from Copesan and our service partners, and working towards systematically incorporating those service capabilities into our owned branch locations, we expect the Adjusted EBITDA contribution from Copesan and other acquisition revenues to increase in the future. Additionally, we incurred incremental selling and administrative expenses as a result of the acquisitions completed during the year. The decrease in bad debt expense was driven by enhanced credit policies and collection rates. The decrease in chemicals and materials was driven by sourcing savings. The decrease in sales and marketing costs at Terminix was driven by a change in the timing of our recognition of sales costs upon our adoption of ASC 606 on January 1, 2018 of $6 million, partially offset by an increase in sales and marketing costs driven by targeted investments to drive sales growth .
Six Months Ended June 30, 2018 Compared to Six Months Ended June 30, 2017
The Terminix segment reported a four percent increase in revenue and a five percent increase in Adjusted EBITDA for the six months ended June 30, 2018 compared to the six months ended June 30, 2017.
Revenue
Revenue by service line is as follows:
Pest control revenue for the six months ended June 30, 2018 increased six percent compared to prior year, primarily reflecting the impact of the Copesan acquisition.
Termite revenue, including wildlife exclusion, crawl space encapsulation and attic insulation, which are managed as a component of our termite line of business, increased one percent compared to prior year. In the six months ended June 30, 2018, termite renewal revenue comprised 50 percent of total termite revenue, while the remainder consisted of termite new unit revenue. Termite revenue organic growth was one percent, reflecting an increase in termite renewals, wildlife exclusion and attic insulation revenue, offset by a decline in termite completion and other services revenue in the first quarter of 2018, driven primarily by unfavorable weather conditions. We estimate that the organic revenue growth would have been approximately $3 million higher if not for the unfavorable weather conditions. Termite activity is unpredictable in its nature. Factors that can impact termite activity include conducive weather conditions and consumer awareness of termite swarms.
35
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
|
|
|
|
(In millions) |
|
|
|
Six Months Ended June 30, 2017 |
|
$ |
186 |
Impact of change in revenue |
|
|
8 |
Acquisition selling and administrative expenses |
|
|
(5) |
Bad debt |
|
|
5 |
Chemicals and materials |
|
|
6 |
Fuel prices |
|
|
(2) |
Sales and marketing |
|
|
(1) |
Incentive compensation |
|
|
(2) |
Production labor |
|
|
1 |
Other |
|
|
(1) |
Six Months Ended June 30, 2018 |
|
$ |
195 |
The impact of the change in revenue on Adjusted EBITDA was driven by the increase in relatively low margin revenue from our acquisition of Copesan. As we continue to drive synergies from Copesan and other acquisitions, leveraging world-class service capabilities from Copesan and our service partners, and working towards systematically incorporating those service capabilities into our owned branch locations, we expect the Adjusted EBITDA contribution from Copesan and other acquisition revenues to increase in the future. Additionally, we incurred incremental selling and administrative expenses as a result of the acquisitions completed during the year. The decrease in production labor was driven by the realization of past investments in field operations. The decrease in bad debt expense was driven by enhanced credit policies and collection rates. The decrease in chemicals and materials was driven by sourcing savings. The increase in sales and marketing costs at Terminix was driven by targeted investments to drive sales growth, partially offset by a change in the timing of our recognition of sales costs upon our adoption of ASC 606 on January 1, 2018 of $4 million .
American Home Shield Segment
Three Months Ended June 30, 2018 Compared to Three Months Ended June 30, 2017
The American Home Shield segment, which provides home service plans for home systems and appliances, reported a nine percent increase in revenue and a 12 percent decrease in Adjusted EBITDA for the three months ended June 30, 2018 compared to the three months ended June 30, 2017.
The growth in renewable customer counts and customer retention are presented below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of June 30, |
||||
|
|
2018 |
|
2017 (1) |
||
Growth in Home Service Plans |
|
6 |
% |
|
11 |
% |
Customer Retention Rate |
|
75 |
% |
|
75 |
% |
___________________________________
|
(1) |
|
As of June 30, 2017, excluding the impact of acquisitions, the growth in home service plans was six percent and the customer retention rate for our American Home Shield segment was 75 percent. |
Revenue
The revenue results reflect an increase in new and renewal unit sales and improved price realization.
36
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
|
|
|
|
(In millions) |
|
|
|
Three Months Ended June 30, 2017 |
|
$ |
82 |
Impact of change in revenue |
|
|
19 |
Contract claims |
|
|
(22) |
Sales and marketing costs |
|
|
(3) |
Customer service costs |
|
|
(2) |
Spin-off dis-synergies |
|
|
(1) |
Other |
|
|
(1) |
Three Months Ended June 30, 2018 |
|
$ |
73 |
The $22 million increase in contract claims costs includes an adjustment of $12 million related to the adverse development of contract claim costs originally estimated and recorded in the first quarter of 2018 and the second half of 2017. Accruals for home service plan claims are made based on our historical claims experience and actuarial projections. Our actuary performs a reserve analysis utilizing generally accepted actuarial methods that incorporates cumulative historical claims experience and information provided by us. We regularly review our estimates of claims costs and adjust the estimates when appropriate . The increase in contract claims costs in the second quarter, and the change in our previous contract claims costs reserve estimates, were principally driven by a higher mix of appliance replacements versus repairs driven by parts availability. In addition to the $12 million of higher claims costs from periods prior to the second quarter of 2018, the impact of higher appliance replacements in the second quarter increased claims costs by $4 million. The increase in contract claims costs in the second quarter also includes normal inflationary pressure on the underlying costs of repairs totaling $3 million and a higher number of work orders driven by significantly warmer summer temperatures in 2018, which increased claims costs by $3 million. Extreme temperatures in the future could lead to an increase in service requests related to home systems, resulting in higher claim frequency and costs.
The increase in sales and marketing costs was driven by targeted spending to drive sales growth. The increase in customer service costs was an incremental investment in customer care center costs to deliver a new level of customer service. Incremental ongoing costs related to the spin-off of American Home Shield of $1 million were incurred, which primarily related to the separation of information technology systems historically shared by our business units.
Six Months Ended June 30, 2018 Compared to Six Months Ended June 30, 2017
The American Home Shield segment reported a nine percent increase in revenue and a seven percent decrease in Adjusted EBITDA for the six months ended June 30, 2018 compared to the six months ended June 30, 2017.
Revenue
The revenue results reflect an increase in new and renewal unit sales and improved price realization.
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
(In millions) |
|
|
|
Six Months Ended June 30, 2017 |
|
$ |
113 |
Impact of change in revenue |
|
|
31 |
Contract claims |
|
|
(28) |
Sales and marketing costs |
|
|
(6) |
Customer service costs |
|
|
(4) |
Spin-off dis-synergies |
|
|
(1) |
Other |
|
|
(1) |
Six Months Ended June 30, 2018 |
|
$ |
105 |
The increase in contract claims costs includes an adjustment of $6 million related to the adverse development of contract claim costs originally estimated and recorded in the second half of 2017 , principally driven by a higher mix of appliance replacements versus repairs driven by parts availability. We estimate the impact of higher appliance replacements increased claims costs by $7 million. The increase in contract claims costs also includes normal inflationary pressure on the underlying costs of repairs totaling $7 million and a higher number of work orders driven by colder winter temperatures in the first quarter and significantly warmer summer temperatures in the second quarter of 2018, which increased claims costs by $8 million. Extreme temperatures in the future could lead to an increase in service requests related to home systems, resulting in higher claim frequency and costs.
The increase in sales and marketing costs was driven by targeted spending to drive sales growth. The increase in customer service costs was an incremental investment in customer care center costs to deliver a new level of customer service. Incremental
37
ongoing costs related to the spin-off of American Home Shield of $1 million were incurred, which primarily related to the separation of information technology systems historically shared by our business units.
F ranchise Services Group Segment
Three Months Ended June 30, 2018 Compared to Three Months Ended June 30, 2017
The Franchise Services Group segment, which consists of the ServiceMaster Restore (disaster restoration), ServiceMaster Clean (janitorial), Merry Maids (residential cleaning), Furniture Medic (cabinet and wood furniture repair) and AmeriSpec (home inspection) businesses, reported a 21 percent increase in revenue and a nine percent increase in Adjusted EBITDA for the three months ended June 30, 2018 compared to the three months ended June 30, 2017.
Revenue
Revenue by service line is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
% of |
|||||
|
|
June 30, |
|
Revenue |
|||||
(In millions) |
|
2018 |
|
2017 |
|
2018 |
|||
Royalty Fees |
|
$ |
35 |
|
$ |
32 |
|
55 |
% |
Janitorial National Accounts |
|
|
16 |
|
|
12 |
|
26 |
|
Sales of Products |
|
|
4 |
|
|
4 |
|
6 |
|
Other |
|
|
8 |
|
|
5 |
|
13 |
|
Total revenue |
|
$ |
64 |
|
$ |
52 |
|
100 |
% |
The increase in royalty fees was driven by higher disaster restoration services including fire and commercial disaster restoration services. The increase in revenue from janitorial national accounts was driven by increased sales activity. The increase in other was primarily driven by the recognition of approximately $4 million of national advertising fund franchisee contributions as revenue pursuant to our adoption of ASC 606 that took effect on January 1, 2018 . Prior to 2018, contributions to the national advertising fund by our franchisees were treated as an offset to advertising expense. The adoption had no impact on Adjusted EBITDA.
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
|
|
|
|
(In millions) |
|
|
|
Three Months Ended June 30, 2017 |
|
$ |
22 |
Impact of change in revenue |
|
|
3 |
Other |
|
|
(1) |
Three Months Ended June 30, 2018 |
|
$ |
24 |
The impact of the increase in revenue was driven by the increase in royalty fees and relatively low margin revenue from janitorial national accounts.
Six Months Ended June 30, 2018 Compared to Six Months Ended June 30, 2017
The Franchise Services Group segment reported a 21 percent increase in revenue and a seven percent increase in Adjusted EBITDA for the six months ended June 30, 2018 compared to the six months ended June 30, 2017.
Revenue
Revenue by service line is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
% of |
|||||
|
|
June 30, |
|
Revenue |
|||||
(In millions) |
|
2018 |
|
2017 |
|
2018 |
|||
Royalty Fees |
|
$ |
68 |
|
$ |
63 |
|
55 |
% |
Janitorial National Accounts |
|
|
31 |
|
|
23 |
|
25 |
|
Sales of Products |
|
|
7 |
|
|
7 |
|
6 |
|
Other |
|
|
17 |
|
|
9 |
|
14 |
|
Total revenue |
|
$ |
123 |
|
$ |
102 |
|
100 |
% |
The increase in royalty fees was driven by higher disaster restoration services including fire and commercial disaster restoration services. The increase in revenue from janitorial national accounts was driven by increased sales activity. The increase in other was primarily driven by the recognition of approximately $7 million of national advertising fund franchisee contributions as revenue pursuant to our adoption of ASC 606 that took effect on January 1, 2018 . Prior to 2018, contributions to the national
38
advertising fund by our franchisees were treated as an offset to advertising expense. The adoption had no impact on Adjusted EBITDA.
Adjusted EBITDA
The following table provides a summary of changes in the segment’s Adjusted EBITDA:
|
|
|
|
|
|
|
|
(In millions) |
|
|
|
Six Months Ended June 30, 2017 |
|
$ |
43 |
Impact of change in revenue |
|
|
6 |
Other |
|
|
(2) |
Six Months Ended June 30, 2018 |
|
$ |
46 |
The impact of the increase in revenue was driven by the increase in royalty fees and relatively low margin revenue from janitorial national accounts.
Corporate
Three Months Ended June 30, 2018 Compared to Three Months Ended June 30, 2017
Adjusted EBITDA for Corporate for the three months ended June 30, 2018 increased two million when compared to the three months ended June 30, 2017, primarily attributable to favorable claims trends in our automobile, general liability and workers’ compensation program, which may or may not continue.
Six Months Ended June 30, 2018 Compared to Six Months Ended June 30, 2017
Adjusted EBITDA for Corporate for the six months ended June 30, 2018 was comparable to the six months ended June 30, 2017.
Liquidity and Capital Resources
Liquidity
We are highly leveraged, and a substantial portion of our liquidity needs are due to service requirements on our significant indebtedness. The agreements governing the $1,650 million term loan facility maturing November 8, 2023 and the $300 million revolving credit facility maturing November 8, 2021 (together, the “Credit Facilities”) contain covenants that limit or restrict our ability, including the ability of certain of our subsidiaries, to incur additional indebtedness, repurchase debt, incur liens, sell assets, make certain payments (including dividends) and enter into transactions with affiliates. As of June 30, 2018, we were in compliance with the covenants under the agreements that were in effect on such date.
Our ongoing liquidity needs are expected to be funded by cash on hand, net cash provided by operating activities and, as required, borrowings under the Credit Facilities. We expect that cash provided from operations and available capacity under the Revolving Credit Facility will provide sufficient funds to operate our business, make expected capital expenditures and meet our liquidity requirements for the following 12 months, including payment of interest and principal on our debt. Cash and short- and long-term marketable securities totaled $496 million as of June 30, 2018, compared with $522 million as of December 31, 2017. As of June 30, 2018, there were $33 million of letters of credit outstanding and $267 million of available borrowing capacity under the Revolving Credit Facility. The letters of credit are posted to satisfy collateral requirements under our automobile, general liability and workers’ compensation insurance program and fuel swap contracts.
In 2016, our board of directors authorized a three-year share repurchase program, under which we may repurchase up to $300 million of outstanding shares of our common stock. As of June 30, 2018, we have repurchased $145 million of outstanding shares under this program, which is included in treasury stock on the condensed consolidated statements of financial position.
Cash and short- and long-term marketable securities include balances associated with regulatory requirements at American Home Shield. See “—Limitations on Distributions and Dividends by Subsidiaries.” American Home Shield’s investment portfolio has been invested in high-quality debt securities. From time to time, we review the statutory reserve requirements to which our regulated entities are subject and any changes to such requirements. These reviews may result in identifying current reserve levels above or below minimum statutory reserve requirements, in which case we may adjust our reserves. The reviews may also identify opportunities to satisfy certain regulatory reserve requirements through alternate financial vehicles.
As of June 30, 2018, we had posted $31 million in letters of credit, which were issued under the Revolving Credit Facility, and $89 million of cash, which is included in Restricted cash on the condensed consolidated statements of financial position, as collateral under our automobile, general liability and workers’ compensation insurance program. We may from time to time change the amount of cash or marketable securities used to satisfy collateral requirements under our automobile, general liability and workers’ compensation insurance program. The amount of cash or marketable securities utilized to satisfy these collateral requirements will depend on the relative cost of the issuance of letters of credit under the Revolving Credit Facility and our cash position. Any change in
39
cash or marketable securities used as collateral would result in a corresponding change in our available borrowing capacity under the Revolving Credit Facility.
Additionally, under the terms of our fuel swap contracts, we are required to post collateral in the event the fair value of the contracts exceeds a certain agreed upon liability level and in other circumstances required by the agreement with the counterparty. As of June 30, 2018, the estimated fair value of our fuel swap contracts was a net gain of $4 million, and we had posted $2 million in letters of credit as collateral under our fuel hedging program, which were also issued under the Revolving Credit Facility. The continued use of letters of credit for this purpose in the future could limit our ability to post letters of credit for other purposes and could limit our borrowing availability under the Revolving Credit Facility. However, we do not expect the fair value of the outstanding fuel swap contracts to materially impact our financial position or liquidity.
We may from time to time repurchase or otherwise retire or extend our debt and/or take other steps to reduce our debt or otherwise improve our financial position, results of operations or cash flows. These actions may include open market debt repurchases, negotiated repurchases, other retirements of outstanding debt and/or opportunistic refinancing of debt. The amount of debt that may be repurchased or otherwise retired or refinanced, if any, will depend on market conditions, trading levels of our debt, our cash position, compliance with debt covenants and other considerations.
Fleet and Equipment Financing Arrangements
We have entered into the Fleet Agreement which, among other things, allows us to obtain fleet vehicles through a leasing program. We expect to fulfill substantially all of our vehicle fleet needs through the leasing program under the Fleet Agreement. For the six months ended June 30, 2018, we acquired $10 million of vehicles through the leasing program under the Fleet Agreement. All leases under the Fleet Agreement are capital leases for accounting purposes. The lease rental payments include an interest component calculated using a variable rate based on one-month LIBOR plus other contractual adjustments and a borrowing margin totaling 2.45 percent. We have no minimum commitment for the number of vehicles to be obtained under the Fleet Agreement.
Additionally, a portion of our property and equipment is leased through programs outside the scope of the Fleet Agreement. For the six months ended June 30, 2018, no property and equipment was acquired through these incremental leasing programs. We anticipate new lease financings, including the Fleet Agreement and incremental leasing programs, for the full year 2018 will range from $25 million to $35 million.
Limitations on Distributions and Dividends by Subsidiaries
We are a holding company, and as such have no independent operations or material assets other than ownership of equity interests in our subsidiaries. We depend on our subsidiaries to distribute funds to us so that we may pay obligations and expenses, including satisfying obligations with respect to indebtedness. The ability of our subsidiaries to make distributions and dividends to us depends on their operating results, cash requirements and financial condition and general business conditions, as well as restrictions under the laws of our subsidiaries’ jurisdictions.
The agreements governing the Credit Facilities may restrict the ability of our subsidiaries to pay dividends, make loans or otherwise transfer assets to us. Further, our subsidiaries are permitted under the terms of the Credit Facilities and other indebtedness to incur additional indebtedness that may restrict or prohibit the making of distributions, the payment of dividends or the making of loans by such subsidiaries to us.
Furthermore, there are third-party restrictions on the ability of certain of our subsidiaries to transfer funds to us. These restrictions are related to regulatory requirements at American Home Shield and to a subsidiary borrowing arrangement at SMAC. The payments of ordinary and extraordinary dividends by our home service plan and similar subsidiaries (through which we conduct our American Home Shield business) are subject to significant regulatory restrictions under the laws and regulations of the states in which they operate. Among other things, such laws and regulations require certain subsidiaries to maintain minimum capital and net worth requirements and may limit the amount of ordinary and extraordinary dividends and other payments that these subsidiaries can pay to us. As of June 30, 2018, the total net assets subject to these third-party restrictions was $1 82 million. We expect that such limitations will be in effect for the foreseeable future. None of our subsidiaries are obligated to make funds available to us through the payment of dividends.
We previously considered the earnings in our non-U.S. subsidiaries to be indefinitely reinvested and, accordingly, recorded no deferred income taxes. The Act imposes a one-time tax (“Transition Tax”) on undistributed and previously untaxed post-1986 foreign earnings and profits, as determined in accordance with U.S. tax principles, of certain foreign owned corporations owned by U.S. stockhol ders. Prior to the Transition Tax included in the Act discussed herein, we had an excess amount for financial reporting over the tax basis in our foreign subsidiaries, including cumulative undistributed earnings of the Company’s foreign subsidiaries of $60 million as of December 31, 2016. While the Transition Tax resulted in all remaining undistributed foreign earnings being subject to U.S. tax, an actual repatriation from our non-U.S. subsidiaries could still be subject to additional foreign withholding taxes and U.S. state taxes. Included in our December 31, 2017 U.S. income tax provision is less than $1 million in Transition Tax.
40
Cash Flows
Cash flows from operating, investing and financing activities, as reflected in the accompanying condensed consolidated statements of cash flows, are summarized in the following table.
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Six Months Ended |
||||
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June 30, |
||||
(In millions) |
|
2018 |
|
2017 |
||
Net cash provided from (used for): |
|
|
|
|
|
|
Operating activities |
|
$ |
279 |
|
$ |
260 |
Investing activities |
|
|
(194) |
|
|
(56) |
Financing activities |
|
|
(110) |
|
|
(124) |
Discontinued operations |
|
|
— |
|
|
1 |
Cash (decrease) increase during the period |
|
$ |
(25) |
|
$ |
81 |
Operating Activities
Net cash provided from operating activities from continuing operations increased $20 million to $279 million for the six months ended June 30, 2018 compared to $260 million for the six months ended June 30, 2017.
Net cash provided from operating activities for the six months ended June 30, 2018 comprised $234 million in earnings adjusted for non-cash charges, offset, in part, by $8 million in payments related to restructuring and $7 million in payments related to the American Home Shield spin-off and a $61 million decrease in cash required for working capital (a $41 million decrease excluding the working capital impact of accrued interest and taxes). For the six months ended June 30, 2018, working capital requirements were favorably impacted by seasonal activity, the timing of income tax payments and favorable changes in the timing of payments to certain of our vendors.
Net cash provided from operating activities for the six months ended June 30, 2017 comprised $198 million in earnings adjusted for non-cash charges and a $63 million decrease in cash required for working capital (a $28 million decrease excluding the working capital impact of accrued interest, restructuring and taxes), offset, in part, by $1 million in payments related to fumigation matters. For the six months ended June 30, 2017, working capital requirements were favorably impacted by seasonal activity and the timing of income tax payments, offset, in part by incentive compensation payments related to 2016 performance.
Investing Activities
Net cash used for investing activities from continuing operations was $194 million for the six months ended June 30, 2018, compared to $56 million for the six months ended June 30, 2017.
This increase was driven by cash paid for business acquisitions, which increased to $149 million and is net of $1 million of cash acquired, for the six months ended June 30, 2018, from $12 million for the six months ended June 30, 2017. Consideration paid in 2018 for the purchase of Copesan, other pest control companies and a master distributor was from cash on hand, deferred purchase price of $ 39 million and future potential earnouts totaling $1 2 million payable to sellers. Consideration paid in 2017 for the purchase of a master distributor and for a tuck-in acquisition consisted of cash payments and debt payable to sellers. We expect to continue our tuck-in acquisition program at Terminix and to periodically evaluate other strategic acquisitions.
Capital expenditures increased to $49 million ($42 million net of government grants) for the six months ended June 30, 2018 from $34 million in the six months ended June 30, 2017 and included recurring capital needs, Global Service Center relocation, and information technology projects. We anticipate capital expenditures for the full year 2018 will range from $70 million to $80 million, reflecting additional Global Service Center relocation costs, recurring capital needs and the continuation of investments in information systems and productivity enhancing technology. In addition, we expect incremental capital expenditures will be required to effect the proposed spin-off of American Home Shield in 2018 and will range from $20 million to $30 million, principally reflecting costs to replicate information technology systems historically shared by our business units. We expect to fulfill our ongoing vehicle fleet needs through vehicle capital leases. We have no additional material capital commitments at this time.
Cash flows used for purchases of securities for the six months ended June 30, 2018 and 2017 totaled $9 million and $7 million, respectively, and were driven by the purchase of marketable securities at American Home Shield. Cash flows from sales and maturities of securities for six months ended June 30, 2018 and 2017 totaled $10 million and $2 million and was driven by normal maturities of debt securities.
Cash flows used for notes receivable, net, for the six months ended June 30, 2018 and 2017 totaled $5 million and $4 million, respectively, and were a result of a net increase in financing provided by SMAC to our franchisees and retail customers of our operating units.
Financing Activities
Net cash used for financing activities from continuing operations was $110 million for the six months ended June 30, 2018 compared to $124 million for the six months ended June 30, 2017.
41
During the six months ended June 30, 2018, we made scheduled principal payments on long-term debt of $116 million, which included a $79 million payment upon maturity of the 2018 Notes using cash on hand from operations and received $6 million from the issuance of common stock upon the exercise of stock options. During the six months ended June 30, 2017, we made scheduled principal payments on long-term debt of $29 million, purchased $17 million in aggregate principal amount of our 7.25% notes maturing in 2038 at a price of 97% of the principal amount, repurchased $85 million of common stock and received $7 million from the issuance of common stock upon the exercise of stock options.
Contractual Obligations
Our 2017 Form 10-K includes disclosures of our contractual obligations and commitments as of December 31, 2017. We continue to make the contractually required payments, and, therefore, the 2018 obligations and commitments as listed in our 2017 Form 10-K have been reduced by the required payments.
Off-Balance Sheet Arrangements
As of June 30, 2018 we did not have any significant off-balance sheet arrangements.
We do not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes. Accordingly, we are not materially exposed to any financing, liquidity, market or credit risk that could arise if we had engaged in such relationships.
Regulatory Matters
On December 16, 2016, the U.S. Virgin Islands Department of Justice filed a civil complaint in the Superior Court of the Virgin Islands related to a fumigation incident in a matter styled Government of the United States Virgin Islands v. The ServiceMaster Company, LLC, The Terminix International Company Limited Partnership, and Terminix International USVI, LLC. The amount and extent of any potential penalties, fines sanctions, costs and damages that the federal or other governmental authorities may yet impose, investigation or other costs and reputational harm, as well as the impact of any additional civil, criminal or other claims or judicial, administrative or regulatory proceedings resulting from or related to the U.S. Virgin Islands fumigation matter, which could be material, is not currently known, and any such further penalties, fines, sanctions, costs or damages would not be covered under the Company’s general liability policies.
Information Regarding Forward-Looking Statements
This report contains forward-looking statements and cautionary statements, including statements with respect to the potential separation of American Home Shield from ServiceMaster and the distribution of American Home Shield shares to ServiceMaster stockholders. Forward-looking statements can be identified by the use of forward-looking terms such as “believes,” “expects,” “may,” “will,” “shall,” “should,” “would,” “could,” “seeks,” “aims,” “projects,” “is optimistic,” “intends,” “plans,” “estimates,” “anticipates” or other comparable terms. Forward-looking statements are subject to known and unknown risks and uncertainties including, but not limited to: uncertainties as to the timing of the spin-off or whether it will be completed at all, the results and impact of the announcement of the proposed spin-off, the failure to satisfy any conditions to complete the spin-off, the increased demands on management to prepare for and accomplish the spin-off, the incurrence of significant transaction costs, the impact of the spin-off on the businesses of ServiceMaster and American Home Shield , and the failure to achieve anticipated benefits of the spin-off. These forward-looking statements also include, but are not limited to statements regarding our intentions, beliefs, assumptions or current expectations concerning, among other things, financial position; results of operations; cash flows; prospects; growth strategies or expectations; customer retention; the continuation of acquisitions, including the integration of any acquired company and risks relating to any such acquired company; fuel prices; attraction and retention of key personnel; the impact of fuel swaps; the valuation of marketable securities; estimates of accruals for self-insured claims related to workers’ compensation, auto and general liability risks; estimates of accruals for home service plan claims; estimates of future payments under operating and capital leases; estimates on current and deferred tax provisions; the outcome (by judgment or settlement) and costs of legal or administrative proceedings, including, without limitation, collective, representative or class action litigation; and the impact of prevailing economic conditions.
Forward-looking statements are subject to known and unknown risks and uncertainties, many of which may be beyond our control. We caution you that forward-looking statements are not guarantees of future performance or outcomes and that actual performance and outcomes, including, without limitation, our actual results of operations, financial condition and liquidity, and the development of the market segments in which we operate, may differ materially from those made in or suggested by the forward-looking statements contained in this report. In addition, even if our results of operations, financial condition and cash flows, and the development of the market segments in which we operate, are consistent with the forward-looking statements contained in this report, those results or developments may not be indicative of results or developments in subsequent periods. A number of important factors, including, without limitation, the risks and uncertainties discussed in “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2017 and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” above
42
could cause actual results and outcomes to differ from those reflected in the forward-looking statements. Additional factors that could cause actual results and outcomes to differ from those reflected in forward-looking statements include, without limitation:
|
· |
|
our ability to successfully complete the spin-off of American Home Shield and obtain the benefits therefrom ; |
|
· |
|
the incurrence of significant transaction costs; |
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· |
|
the increased demands on management to prepare for and accomplish the spin-off; |
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· |
|
our ability to attract and retain key personnel, including our ability to attract, retain and maintain positive relations with trained workers and third-party contractors; |
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· |
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our ability to successfully implement our business strategies; |
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· |
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risks associated with acquisitions, including, without limitation, retaining customers from businesses acquired, difficulties in integrating acquired businesses and achieving expected synergies therefrom; |
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· |
|
resolution of fumigation related matters; |
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· |
|
lawsuits, enforcement actions and other claims by third parties or governmental authorities; |
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· |
|
compliance with, or violation of, environmental, health and safety laws and regulations; |
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· |
|
cyber security breaches, disruptions or failures in our information technology systems and our failure to protect the security of personal information about our customers; |
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· |
|
adverse weather conditions; |
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· |
|
weakening general economic conditions, especially as they may affect home sales, unemployment and consumer confidence or spending levels; |
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· |
|
our ability to generate the significant amount of cash needed to fund our operations and service our debt obligations; |
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· |
|
adverse credit and financial markets impeding access, increasing financing costs or causing our customers to incur liquidity issues leading to some of our services not being purchased or cancelled; |
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· |
|
increase in prices for fuel and raw materials, and in minimum wage levels; |
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· |
|
changes in the source and intensity of competition in our market segments; |
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· |
|
our franchisees, subcontractors, third-party distributors and vendors taking actions that harm our business; |
|
· |
|
changes in our services or products; |
|
· |
|
our ability to protect our intellectual property and other material proprietary rights; |
|
· |
|
negative reputational and financial impacts resulting from future acquisitions or strategic transactions; |
|
· |
|
laws and governmental regulations increasing our legal and regulatory expenses; |
|
· |
|
increases in interest rates increasing the cost of servicing our substantial indebtedness; |
|
· |
|
increased borrowing costs due to lowering or withdrawal of the ratings, outlook or watch assigned to our debt securities; |
|
· |
|
restrictions contained in our debt agreements; |
|
· |
|
the effects of our substantial indebtedness and the limitations contained in the agreements governing such indebtedness; and |
|
· |
|
other factors described in this report and from time to time in documents that we file with the SEC. |
You should read this report completely and with the understanding that actual future results may be materially different from expectations. All forward-looking statements made in this report are qualified by these cautionary statements. These forward-looking statements are made only as of the date of this report, and we do not undertake any obligation, other than as may be required by law, to update or revise any forward-looking or cautionary statements to reflect changes in assumptions, the occurrence of events, unanticipated or otherwise, and changes in future operating results over time or otherwise.
Comparisons of results for current and any prior periods are not intended to express any future trends, or indications of future performance, unless expressed as such, and should only be viewed as historical data.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The economy and its impact on discretionary consumer spending, labor wages, fuel prices and other material costs, home resales, unemployment rates, insurance costs and medical costs could have a material adverse impact on future results of operations.
We do not hold or issue derivative financial instruments for trading or speculative purposes. We have entered into specific financial arrangements, primarily fuel swap agreements and interest rate swap agreements, in the normal course of business to manage certain market risks, with a policy of matching positions and limiting the terms of contracts to relatively short durations. The effect of derivative financial instrument transactions could have a material impact on our financial statements.
43
Interest Rate Risk
We are exposed to the impact of interest rate changes and manage this exposure through the use of variable-rate and fixed-rate debt and by utilizing interest rate swaps. In our opinion, the market risk associated with debt obligations and other significant instruments as of June 30, 2018 has not materially changed from December 31, 2017 (see Item 7A of the 2017 Form 10-K).
Fuel Price Risk
We are exposed to market risk for changes in fuel prices through the consumption of fuel by our vehicle fleet in the delivery of services to our customers. We expect to use approximately 12 million gallons of fuel in 2018. As of June 30, 2018, a 10 percent change in fuel prices would result in a change of approximately $3 million in our annual fuel cost before considering the impact of fuel swap contracts.
We use fuel swap contracts to mitigate the financial impact of fluctuations in fuel prices. As of June 30, 2018, we had fuel swap contracts to pay fixed prices for fuel with an aggregate notional amount of $29 million, maturing through 2019. The estimated fair value of these contracts as of June 30, 2018 was a net asset of $4 million. These fuel swap contracts provide a fixed price for approximately 81 percent and 55 percent of our estimated fuel usage for the remainder of 2018 and 2019, respectively.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of disclosure controls and procedures
Our Chief Executive Officer, Nikhil M. Varty, and Senior Vice President and Chief Financial Officer, Anthony D. DiLucente, have evaluated our disclosure controls and procedures (as defined in Rule 13a-15(e) and Rule 15d-15(e) under the Exchange Act) as of the end of the period covered by this Quarterly Report on Form 10-Q as required by Rule 13a-15(b) and Rule 15d-15(b) under the Exchange Act. Messrs. Varty and DiLucente have concluded that both the design and operation of our disclosure controls and procedures were effective as of June 30, 2018.
Changes in internal control over financial reporting
No changes in our internal control over financial reporting, as defined in Rule 13a-15(f) or Rule 15d-15(f) under the Exchange Act, occurred during the six months ended June 30, 2018 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item
On December 16, 2016, the U.S. Virgin Islands Department of Justice filed a civil complaint in the Superior Court of the Virgin Islands related to a fumigation incident in a matter styled Government of the United States Virgin Islands v. The ServiceMaster Company, LLC, The Terminix International Company Limited Partnership, and Terminix International USVI, LLC. The amount and extent of any potential penalties, fines sanctions, costs and damages that the federal or other governmental authorities may yet impose, investigation or other costs and reputational harm, as well as the impact of any additional civil, criminal or other claims or judicial, administrative or regulatory proceedings resulting from or related to the U.S. Virgin Islands fumigation matter, which could be material, is not currently known, and any such further penalties, fines, sanctions, costs or damages would not be covered under the Company’s general liability policies.
In addition to the matter discussed above, in the ordinary course of conducting business activities, we and our subsidiaries become involved in judicial, administrative and regulatory proceedings involving both private parties and governmental authorities. These proceedings include insured and uninsured matters that are brought on an individual, collective, representative and class action basis, or other proceedings involving regulatory, employment, general and commercial liability, automobile liability, wage and hour, environmental and other matters. We have entered into settlement agreements in certain cases, including with respect to putative collective and class actions, which are subject to court or other approvals. If one or more of our settlements are not finally approved, we could have additional or different exposure, which could be material. Subject to the paragraphs above, we do not expect any of these proceedings to have a material effect on our reputation, business, financial position, results of operations or cash flows; however, we can give no assurance that the results of any such proceedings will not materially affect our reputation, business, financial position, results of operations and cash flows. See Note 6 to the condensed consolidated financial statement for more details.
44
We discuss in our 2017 Form 10-K and our other filings with the SEC various risks that may materially affect our business. In addition, you should carefully consider the factors described below and the materialization of any risks and uncertainties identified in Forward-Looking Statements contained in this report, together with those previously disclosed in the 2017 Form 10-K and our other filings with the SEC or those that are presently unforeseen could result in significant adverse effects on our financial condition, results of operations and cash flows. See “Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations — Information Regarding Forward-Looking Statements” above.
Changes to United States tariff and import/export regulations may increase the costs of home systems appliances and repair parts and, in turn, adversely impact our business.
Tariff policies are under continuous review and subject to change. The current U.S. administration has voiced strong concerns about imports from countries that it perceives as engaging in unfair trade practices, and could impose import duties or restrictions on components and raw materials that are applicable to our business from countries it perceives as engaging in unfair trade practices. Such duties or restrictions, or the perception that they could occur, may materially and adversely affect our business by increasing our costs or reducing global trade. For example, rising steel costs due to blanket tariffs on imported steel and aluminum could increase the costs of our home systems, appliances and repair parts, which could have a material adverse effect on our business, financial position, results of operations and cash flows.
Moreover, new tariffs and changes to U.S. trade policy could prompt retaliation from affected countries, potentially triggering the imposition of tariffs on U.S. goods. Such a “trade war” could lead to general economic downturn or could materially and adversely affect the demand for our services, thus negatively impacting our business, financial position, results of operations and cash flows.
Increases in appliances, parts and system prices, fuel prices and other operating costs could adversely impact our reputation, businesses, financial position, results of operations and cash flows.
Our financial performance may be adversely affected by increases in the level of our operating expenses, such as fuel, chemicals, refrigerants, appliances and equipment, parts, raw materials, wages and salaries, employee benefits, health care, vehicle maintenance, contractor costs, self-insurance costs and other insurance premiums, as well as various regulatory compliance costs, all of which may be subject to inflationary pressures.
Raw materials, such as steel and fuel prices are subject to market volatility. We cannot predict the extent to which we may experience future increases in costs of fuel, chemicals, refrigerants, appliances and equipment, parts, raw materials, wages and salaries, employee benefits, health care, vehicle maintenance, contractor costs, self-insurance costs and other insurance premiums, as well as various regulatory compliance costs and other operating costs. To the extent such costs increase, we may be prevented, in whole or in part, from passing these cost increases through to our existing and prospective customers, which could have a material adverse impact on our reputation, businesses, financial position, results of operations and cash flows.
We depend on a limited number of third-party components suppliers. Our reputation, business, financial position, results of operations and cash flows may be harmed if these parties do not perform their obligations or if they suffer interruptions to their own operations, or if alternative component sources are unavailable or if there is an increase in the costs of these components.
We are dependent on a limited number of suppliers for various key components used in the services and products we offer to customers, and the cost, quality and availability of these components are essential to our services. We are subject to the risk of shortages, increased costs and long lead times in the supply of these components and other materials, and the risk that our suppliers discontinue or modify, or increase the price of, the components used. If the supply of these components were to be delayed or constrained, or if one or more of our main suppliers were to go out of business, alternative sources or suppliers may not be available on acceptable terms or at all. Further, if there were a shortage of supply, the cost of these components may increase and harm our ability to provide our services on a cost-effective basis. In connection with any supply shortages in the future, reliable and cost-effective replacement sources may not be available on short notice or at all, and this may force us to increase prices and face a corresponding decrease in demand for our services. In the event that any of our suppliers were to discontinue production of our key product components, developing alternate sources of supply for these components would be time consuming, difficult and costly. This would harm our ability to market our services in order to meet market demand and could materially and adversely affect our reputation, business, financial position, results of operations and cash flows.
We have limited control over these parties on which our business depends. If any of these parties fails to perform its obligations on schedule, or breaches or ends its relationship with us, we may be unable to satisfy demand for our services. Delays, product shortages and other problems could impair our retail distribution and brand image and make it difficult for us to attract new customers. If we experience significantly increased demand, or if we need to replace an existing supplier, we may be unable to supplement or replace such supply capacity on terms that are acceptable to us, which may undermine our ability to deliver our services to customers in a timely and cost-efficient manner. Accordingly, a loss or interruption in the service of any key party could adversely impact our reputation, business, financial position, results of operations and cash flows.
45
Effective July 31, 2018, Performance Share Units previously granted to certain executive officers of the Company on February 22, 2016 and February 20, 2017 were cancelled by the Compensation Committee of the Board of Directors due to the complexities of adjusting such awards as a consequence of the planned spin-off of the American Home Shield business and because the awards were tracking below payout threshold at the time of cancellation. The executive officers voluntarily agreed to the cancellation of these awards. The awards were cancelled for Anthony D. DiLucente, Mary Kay Wegner and Susan K. Hunsberger.
46
|
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Exhibit
|
|
Description |
10.1# |
|
Employment Agreement, dated as of May 15, 2018, between Rex Tibbens and American Home Shield. |
10.2# |
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Sign-on Restricted Stock Unit Agreement, dated as of May 15, 2018, with Rex Tibbens. |
10.3# |
|
Sign-on Stock Option Agreement, dated as of May 15, 2018, with Rex Tibbens. |
10.4# |
|
Restricted Stock Unit Agreement, dated as of May 15, 2018, with Rex Tibbens. |
10.5# |
|
Stock Option Agreement, dated as of May 15, 2018, with Rex Tibbens. |
10.6# |
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|
10.7# |
|
Schedule of Signatories to a Director Indemnification Agreement. |
10.8# |
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10.9# |
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10.10# |
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31.1# |
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31.2# |
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32.1# |
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32.2# |
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|
101.INS# |
|
XBRL Instance Document |
101.SCH# |
|
XBRL Taxonomy Extension Schema |
101.CAL# |
|
XBRL Taxonomy Extension Calculation Linkbase |
101.DEF# |
|
XBRL Taxonomy Extension Definition Linkbase |
101.LAB# |
|
XBRL Taxonomy Extension Label Linkbase |
101.PRE# |
|
XBRL Extension Presentation Linkbase |
___________________________________
# Filed herewith.
47
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: August 1, 2018
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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(Registrant) |
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By: |
/s/ Anthony D. DiLucente |
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|
Anthony D. DiLucente |
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Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
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48
Exhibit 10.1
EXECUTION VERSION
THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) is made as of May 15, 2018, by and between Rex Tibbens (“ Executive ”), and American Home Shield (the “ Company ”), a wholly owned subsidiary of ServiceMaster Global Holdings, Inc., a Delaware corporation (“ ServiceMaster ”).
WHEREAS, the Company desires to employ Executive as the President and Chief Executive Officer (“ CEO ”) of the Company and as a future member of the Company’s Board of Directors (the “ Board ”) following the spinoff by ServiceMaster of the Company as a publicly traded company (the “ Spin ”), and Executive desires to be employed by the Company in such capacities, in each case pursuant to the terms and conditions of this Agreement.
WHEREAS, the Company and Executive intend hereby to set forth the terms and conditions upon which Executive shall be employed in such capacities.
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows:
1. Defined Terms . Any capitalized terms which are not defined within this Agreement are defined in Exhibit A hereto attached.
2. Term . The Company shall employ Executive, and Executive agrees to be employed by the Company in each case, subject to the terms and conditions of this Agreement, for the period commencing on May 15, 2018 (the “ Effective Date ”) and continuing through and including the earliest of (a) the effective date of Executive’s termination of employment (the “ Date of Termination ”), (b) the date of Executive’s death, and (c) the fourth anniversary of the Effective Date (such period, the “ Term ”); provided that the Term shall automatically be extended by one year effective upon the fourth anniversary of the Effective Date and each anniversary thereafter, until such date as either the Company or Executive shall have terminated such automatic extension provision by giving written notice to the other at least ninety (90) days prior to the end of the initial Term or any extended Term.
3. Duties; Location of Performance .
(a) Commencing on the Effective Date, continuing during the Term, Executive shall: (i) have the authorities and responsibilities consistent with his position as the CEO of the Company; (ii) report to the Chief Executive Officer of ServiceMaster prior to the Spin and the Board of Directors of the Company (the “ Board ”) upon and after the Spin; and (iii) after the Spin, so long as Executive serves as CEO of the Company, serve as a member of the Board without additional compensation. Commencing no later than the date of the Spin (the “ Spin Date ”), Executive shall be appointed as a member of the Board, and at all times as applicable during the Term, the Company shall nominate Executive for election to the Board; provided that upon any termination of Executive’s employment under this Agreement, Executive shall, effective as of the Date of Termination (or Executive’s death), immediately cease to serve on the Board and any
committees thereof. During the Term, all employees of the Company and its subsidiaries shall report to Executive or his designee.
(b) Subject to any required business travel on behalf of the Company and the provisions of Section 4(d) below, Executive’s principal place of business will be at the Company’s corporate offices in the greater Memphis, Tennessee, metropolitan area (the “ Corporate Headquarters ”).
(c) Notwithstanding any provision to the contrary herein, Executive will be permitted (in accordance with the Company's Conflict of Interest Policy) to act or serve as a member of the board of directors of up to two privately held companies (which as of the date of this Agreement the Company acknowledges are Zipline and Carggo), and as a member of the board of directors of any other business, civic, or charitable company or organization approved by the Company; provided, that the Company agrees that the Executive may also remain a member of the board of directors of Pillow through the end of his current term as a member thereof. Further, if at any time during the Term, Zipline, Carggo and/or Pillow become publicly traded companies, Executive shall resign all service relationships with such company(ies), unless the Board otherwise agrees to Executive’s continued service on the board of directors with respect to such company(ies).
4. Obligations of the Company During the Term . The Company shall provide the following to Executive during the Term:
(a) Salary . The Company shall pay Executive a base salary (“ Base Salary ”) at an annual rate of at least $800,000, payable in accordance with the payroll practices of the Company. Executive’s rate of Base Salary shall be subject to annual review by the Board or the Compensation Committee (defined below) and any possible increase (but not decrease) shall be at the discretion of the Board or the Compensation Committee. Executive’s Base Salary may not be decreased without the written consent of Executive.
(b) Annual Bonus .
(1) Generally . Executive shall be eligible to participate in the Annual Bonus Plan (or any successor plan) (the “ Bonus Plan ”) in respect of each fiscal year of the Company on at least the same terms and conditions as other executive officers of, prior to the Spin, ServiceMaster, and on and after the Spin, the Company; provided that Executive’s annual bonus opportunity payable at achievement of “target” levels shall not be less than 100 percent of Base Salary (the “ Target Bonus ”), it being understood that the actual amount payable and the performance metrics, weighting, and thresholds applicable to Executive shall be determined in accordance with the Bonus Plan as adopted and administered by the Compensation Committee of the Board (the “ Compensation Committee ”). Any amount payable pursuant to this Section 4(b)(1), and Section 4(b)(2) below, shall be paid when paid to other executive officers of the Company under the Bonus Plan, but in no event later than March 15 of the year following the year in respect of which it was earned.
(2) 2018 Performance Year . Notwithstanding Section 4(b)(1), in no event shall Executive’s annual bonus for the 2018 performance year be less than an amount equal to (x) $800,000, multiplied by (y) a fraction, the numerator of which is the
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number of days from the Effective Date through December 31, 2018, and the denominator of which is 365.
(c) Benefits . Executive shall be entitled to those employee benefits and perquisites which the Company from time to time generally makes available to its executive officers (“ Benefits ”) subject to the terms and conditions of such benefit plans or programs. The Benefits shall include, without limitation, medical insurance, dental insurance, life insurance, vision insurance, flexible spending or similar account, four weeks of paid annual vacation, and such other benefits, as the Board or Compensation Committee may determine from time to time. In addition, to the extent that, on and after the Effective Date, the Company provides its other named executive officers an automobile allowance or Company car, then the Company shall also provide the same level of automobile allowance or Company car to Executive.
(d) Reimbursement of Other Expenses; Relocation . Executive shall be reimbursed for all proper and reasonable expenses incurred by Executive in the performance of his duties hereunder in accordance with the policies of the Company. Executive shall, on a fully tax grossed-up basis, (i) also qualify for the Company’s relocation program and shall be provided with reimbursement of his relocation expenses in accordance with the terms and conditions of that program and (ii) through the first anniversary of the Effective Date, be provided with corporate housing in the Corporate Headquarters area and with reimbursement for reasonable weekly commuting expenses between Seattle, WA, and Memphis, TN, consistent with the business travel reimbursement policies applicable to the Company’s executive officers.
5. Equity-Based Compensation .
(a) Restricted Stock Units .
(1) RSU Grant . Effective as of the Effective Date, ServiceMaster shall grant Executive a number of shares of restricted stock units (“ RSUs ”) under the Stock Incentive Plan having a grant date value equal to $1,000,000 (the “ Sign-On RSUs ”). The Sign-On RSUs shall vest, subject to Executive’s continued employment with the Company, ratably over three years, starting on the first anniversary of the Effective Date, and as otherwise provided in the Sign-On RSU Agreement (as defined below).
(2) Terms and Conditions . The terms and conditions of the Sign-On RSUs (including, but not limited to, the vesting conditions) shall be set forth in a separate Employee Restricted Stock Unit Agreement, in the form attached hereto as Exhibit B , to be entered into between ServiceMaster and Executive (the “ Sign-On RSU Agreement ”) and will be subject to the terms and provisions of the Stock Incentive Plan.
(b) Stock Options .
(1) Option Grant . Effective as of the Effective Date, ServiceMaster shall grant Executive non-qualified stock options to purchase shares of Common Stock under the Stock Incentive Plan having a Black-Scholes value equal to $1,000,000 (the “ Options ”). The Options will vest, subject to Executive’s continued employment with the Company, in four annual installments at a rate of one-fourth per year on each of the
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first four anniversaries of the Effective Date and as otherwise provided in the Employee Stock Option Agreement (as defined below). The exercise price per share of Common Stock covered by the Options shall be equal to the Fair Market Value (as defined in the Stock Incentive Plan) on the Effective Date, as required under the Stock Incentive Plan.
(2) Terms and Conditions . The terms and conditions of the Options (including, but not limited to, the vesting conditions) shall be set forth in a separate Employee Stock Option Agreement, in the form of Employee Stock Option Agreement attached as Exhibit C , to be entered into between Service Master and Executive (the “ Employee Stock Option Agreement ”) and will be subject to the terms and provisions of the Stock Incentive Plan.
(c) Annual Equity Grants .
(1) Prorated 2018 Annual Equity Grant . Effective as of the Effective Date, ServiceMaster shall grant Executive RSUs and non-qualified stock options to purchase shares of Common Stock under the Stock Incentive Plan with a collective value of $1,250,000, which will have the same composition (50% RSUs and 50% stock options), and will vest on the same schedule, as such annual grants made in February 2018 to the named executive officers of ServiceMaster, with Executive to receive service credit for such vesting from the date the annual grants were made in February 2018 to the other named executive officers (the “ 2018 Equity Grant ” and, collectively with the Sign-On RSUs and the Options, the “ Equity Awards ”).
(2) Terms and Conditions . The terms and conditions of the 2018 Equity Grant (including, but not limited to, the vesting conditions) shall be set forth in a separate Employee Restricted Stock Unit Agreement, in the form attached as Exhibit D , and a separate Stock Option Agreement, in the form attached as Exhibit E , both to be entered into between ServiceMaster and Executive (the “ 2018 Equity Award Agreements ” and collectively with the Sign-On RSU Agreement and the Employee Stock Option Agreement, the “ Equity Award Agreements ”).
(3) Future Annual Equity Grants . Beginning in calendar year 2019 and each subsequent calendar year occurring during the Term, Executive shall be eligible to be considered for annual long-term equity incentive grants having a target total grant date value equal to 250% of his Annual Base Salary, with any such grants to be made at the same time as other senior executives of the Company (or prior to the Spin, Service Master) with the form(s) of such annual equity grants to be determined by the Compensation Committee of the Board (or prior to the Spin, the compensation committee of the board of directors of ServiceMaster).
(d) Notwithstanding any terms of the Equity Award Agreements or otherwise to the contrary, subject to and conditioned on the completion of the Spin, for the avoidance of doubt in connection with the Spin all outstanding ServiceMaster equity awards then held by Executive shall be converted into awards covering shares of publicly traded Company common stock, in accordance with the provisions of the Stock Incentive Plan.
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6. Severance Benefits .
(a) In the event that Executive’s employment hereunder is terminated during the period beginning on and including the Effective Date and ending on or prior to the expiration of the Term by the Company without Cause or by Executive for Good Reason, then the Company, subject to Section 6(g), shall pay to Executive, as compensation for services rendered to the Company and its affiliated companies:
(1) Executive’s Base Salary earned through the Date of Termination, to the extent not previously paid (but after giving effect to any amounts that would be deferred pursuant to the Company’s deferred compensation plan); plus
(2) (i) Executive’s annual bonus earned with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, to the extent not previously paid (but after giving effect to any amounts that would be deferred pursuant to the Company’s deferred compensation plan), plus (ii) the bonus that Executive would have been paid in respect of the fiscal year in which the Date of Termination occurs had his employment not terminated, prorated for the portion of the fiscal year during which Executive was employed elapsed through the Date of Termination based on actual performance (the “ Pro Rata Bonus ”); plus
(3) a continued payment of his monthly Base Salary, at the rate in effect immediately prior to the Date of Termination, for twelve (12) months following the Date of Termination; provided that such payment period shall be for twenty-four (24) months following the Date of Termination if the Date of Termination is prior to January 1, 2020 (the “ Severance Period ”); plus
(4) a lump sum payment equal to Executive’s Target Bonus; plus
(5) reimbursement of Executive’s expenses pursuant to Section 4(d) and any accrued but unused vacation; plus
(6) to the extent not already vested by their terms on or prior to such Date of Termination, the Sign-On RSUs shall become immediately vested on such Date of Termination; plus
(7) if applicable, outstanding and unvested equity awards not otherwise covered by Section 6(a)(6) shall vest in accordance with their applicable terms.
(b) In the event that Executive’s employment hereunder is terminated during the period beginning on and including the Effective Date and ending on or prior to the expiration of the Term by the Company for Cause or by Executive for any reason other than Good Reason, including by reason of death or Disability, then the Company shall pay to Executive (or Executive’s executors, legal representatives or administrators in the event of Executive’s death), as compensation for services rendered to the Company and its affiliated companies:
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(1) Executive’s Base Salary earned through the Date of Termination or date of death, to the extent not previously paid (but after giving effect to any amounts that would be deferred pursuant to the Company’s deferred compensation plan); plus
(2) in the event Executive’s employment is terminated by reason of death or Disability, (i) Executive’s annual bonus earned with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, to the extent not previously paid (but after giving effect to any amounts that would be deferred pursuant to the Company’s deferred compensation plan), plus (ii) a Pro Rata Bonus; plus
(3) reimbursement of Executive’s expenses pursuant to Section 4(d) and any unused but accrued vacation; plus
(4) if applicable, outstanding and unvested equity awards shall vest in accordance with their applicable terms.
(c) Payment . Subject to Section 14, (i) any amount payable pursuant to Section 6(a)(1) or 6(b)(1) above shall be paid in accordance with the payroll practices of the Company; (ii) any amount payable pursuant to Section 6(a)(2) or 6(b)(2) shall be paid when annual bonuses for the applicable fiscal years are paid to other executive officers of the Company, but in no event later than March 15 of the year following the year in respect of which such bonuses were earned; and (iii) any amount payable pursuant to Section 6(a)(3) shall be paid in equal monthly installments during the one-year period (two-year period if the Date of Termination is prior to January 1, 2020) following the Date of Termination, except that all installments that would have been paid during the first 60 days following the Date of Termination shall be paid on the 60th day following the Date of Termination; and (iv) any amount payable pursuant to Section 6(a)(4) shall be paid no later than 70 days following the Date of Termination. In addition, if on the Date of Termination Executive is a “specified employee,” as defined in Treasury Regulation Section 1.409A-1(i) and determined using the identification methodology selected by the Company from time to time, or if none, the default methodology, any or all amounts payable under this Agreement on account of such termination of employment that would (but for this provision) be payable within six months following the Date of Termination, shall instead be paid in a lump sum on the first day of the seventh month following the Date of Termination or, if earlier, upon Executive’s death, except (A) to the extent of amounts that do not constitute a “deferral of compensation” within the meaning of Treasury Regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury Regulation Section 1.409A 1(a)(5); and (C) other amounts or benefits that are not subject to the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”).
(d) Continuation of Benefits . In the event Executive is entitled to the severance benefits under Section 6(a), then (i) for twelve (12) months (eighteen (18) months if the Date of Termination is prior to January 1, 2020) following the Date of Termination, subject to Executive’s enrollment for COBRA continuation coverage and payment of the applicable monthly COBRA premium amounts (the “ Monthly COBRA Premium Amount ”), the Company will cause a monthly reimbursement to be made to
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Executive such that, after payment of applicable taxes, Executive retains an amount of such reimbursement equal to the employer contribution for active employees for the COBRA coverage so elected as in effect immediately prior to the Date of Termination; and (ii) if by the end of such 18-month period, if the Date of Termination is prior to January 1, 2020, Executive and his covered dependents have not become covered by a plan of a subsequent employer offering the same type of benefits, then, for the shorter of (A) six (6) months and (B) the end of the month in which Executive obtains such coverage from a subsequent employer, the Company will cause Executive to be paid a monthly amount such that, after payment of applicable taxes, Executive retains an amount of such payment equal to 100% of the Monthly COBRA Premium Amount.
(e) Exclusive Severance . Any amount paid pursuant to Section 6(a), 6(b) or 6(d) shall be paid in lieu of any other amount of severance relating to salary continuation or bonus payments or health, welfare and life insurance coverage to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company or its affiliated companies. Notwithstanding the foregoing, in the event that Executive’s employment hereunder is terminated hereunder for any reason, Executive shall be entitled to continuation of Benefits subject to the terms and conditions of such benefit plans or programs for terminated employees.
(f) Equity-Based Compensation . Except as otherwise expressly provided in Sections 5 and 6(a)(6) of this Agreement, each share of Common Stock and all Equity Awards held by Executive on the Date of Termination or date of death shall be subject to the terms and conditions of the applicable Equity Award Agreement and Stock Incentive Plan, including, without limitation, the restriction periods, vesting and forfeiture schedules, and termination provisions.
(g) Release; Compliance with Restrictive Covenants . Notwithstanding anything to the contrary in this Section 6, in the event the Company is obligated to make payments pursuant to Sections 6(a)(3), 6(a)(4), 6(a)(6) and 6(d), it shall be a condition to such payments that: (i), within forty-five (45) days following the Date of Termination, Executive enter into a general release of claims, containing the provisions attached hereto as Exhibit F and such other provisions, if any, as the parties may mutually agree, waiving any and all claims against the Company and its subsidiaries, its parent entities, its affiliates and their respective officers, directors, employees, agents, representatives, stockholders, members and partners relating to this Agreement and to his employment during the term hereof and (ii) Executive materially complies with the covenants set forth in Section 7(a), (b) and (d) during the Severance Period.
(h) Notice of Termination . Executive shall be required to provide the Company with thirty (30) days’ advance written notice, and the Company may provide notice at any time, of the intention to terminate Executive’s employment for any reason, other than a termination by the Company for Cause or termination by Executive with Good Reason, each of which shall be subject to the applicable notice and cure time periods set forth in Exhibit A .
(i) In the event the Company gives Executive notice of non-automatic extension of this Agreement at any time pursuant to Section 2, such termination shall be treated as a termination without Cause immediately prior to the expiration of the Term.
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7. Covenants . For good and valuable consideration, including without limitation the grant of Equity Awards and the severance benefits provided for in Section 6 above, the sufficiency of which Executive hereby acknowledges, Executive agrees to the following:
(a) Non-Competition, Non-Solicitation . From and after the Effective Date and through and including the date that is one year after the Date of Termination, Executive shall not do any of the following, directly or indirectly, without the prior written consent of the Board:
(1) directly or indirectly (whether as owner, stockholder, director, officer, employee, principal, agent, consultant, independent contractor, partner or otherwise), in North America or any other geographic area in which the Company or any subsidiary of the Company is then conducting business, own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business similar to or competitive with a business conducted by the Company or any subsidiary of the Company and/or, prior to the Spin, ServiceMaster or any of its subsidiaries (a “ Competitive Enterprise ”), provided that the foregoing shall not prohibit (x) Executive’s passive ownership of less than 1% of any class of voting securities of a publicly held company which would otherwise be prohibited under this Section 7(a)(1) or (y) Executive’s providing services to either (A) a separate division or operating unit of a multi-divisional Competitive Enterprise if such division or operating unit is not competitive with the business conducted by the Company or any subsidiary of the Company or (B) a Competitive Enterprise where the revenues derived from the divisions or operating units that, if standing alone, would be a Competitive Enterprise (I) account in the aggregate for less than 20% of the aggregate consolidated revenue of the entire Competitive Enterprise (or, if applicable, the portion of the Competitive Enterprise for which Executive is responsible (including, for the avoidance of doubt, subsidiary entities)) and (II) on a business unit by business unit basis are 35% or less than the revenue of the corresponding business unit of the Company (except that, for purpose of the clause (II), any Company business unit that accounts for 10% or less of the aggregate consolidated revenue of the Company shall be disregarded), in the case of each of (I) and (II) for the fiscal year prior to Executive’s commencement of employment therewith; or
(2) other than in the good faith performance of Executive’s duties to the Company, directly or indirectly attempt to induce any employee of the Company or any subsidiary or parent of the Company to terminate his or her employment with the Company or any subsidiary or parent of the Company for any purpose whatsoever, or attempt directly or indirectly, in connection with any business to which Section 7(a)(1) applies, to solicit the trade or business of any current or prospective customer, supplier or partner of the Company or any subsidiary or parent of the Company; provided , that this Section 7(a)(2) shall not be violated by (i) general advertising or solicitation not specifically targeted at the Company related persons or entities or (ii) Executive serving as a reference, upon request.
(b) Confidentiality; Work Product . Executive agrees that, during Executive’s employment with the Company and its subsidiaries and thereafter, other than in the good faith performance of his duties to the Company and its subsidiaries, Executive will not disclose confidential or proprietary information, or trade secrets, related to any business of the Company or its subsidiaries, including without limitation, and whether or not such
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information is specifically designated as confidential or proprietary: all business plans and marketing strategies; information concerning existing and prospective markets, suppliers and customers; financial information; information concerning the development of new products and services; and technical and non-technical data related to software programs, design, specifications, compilations, inventions, improvements, patent applications, studies, research, methods, devices, prototypes, processes, procedures and techniques. Notwithstanding the foregoing, Executive may disclose confidential information to the extent required by law, regulation or order of a regulatory body, in each case so long as Executive gives the Company written notice of the disclosure as soon as practicable under the circumstances to enable the Company to seek a protective order, confidential treatment or other appropriate relief (except that notice to the Company need not be given during any period that such disclosure is prohibited by applicable law). Executive’s obligations under this Section are indefinite in term. Executive hereby assigns, transfers and releases, without royalty or any other consideration except as expressly set forth herein, all worldwide right, title and interest Executive may have or acquire (including copyright and “moral rights”) in and to all work product, inventions, discoveries, know ‐ how, processes, data and other items (“ Materials ”) resulting from Executive’s services under this Agreement. To the extent any Materials are not assignable, Executive waives, disclaims and agrees that Executive will not enforce against the Company any rights Executive may have to such Materials.
(c) Non-Disparagement . At all times during the Term and for one (1) year thereafter, Executive agrees that Executive will refrain from making public statements, written or oral, which criticize, disparage or defame the business, goodwill or reputation of the Company or Service Master (including their products and services), their directors, officers, executives, subsidiaries, parent entities, and/or employees or making statements which could adversely affect the morale of other employees. At all times during the Term and for one (1) year thereafter, the Company agrees that its active members of the Board and active named executive officers (each as in effect from time to time) will refrain from making public statements, written or oral, which criticize, disparage or defame Executive. Nothing in this Agreement, however, shall be construed to prevent Executive or the Company (including any of its representatives) from providing truthful testimony or information in response to any valid subpoena, court order, the request of any government agency or as otherwise required by law (including in connection with any whistleblower laws), from rebutting false or misleading statements about the party by others or making normal competitive-type statements not in violation of Section 7(a) above. There shall be no third-party beneficiaries of this Section 7(c), other than applicable subsidiaries of the Company.
(d) Cooperation . During and after Executive’s employment, Executive shall reasonably cooperate with the Company with respect to any matter (including without limitation any investigation, governmental proceeding and litigation, including the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company or its affiliates) that relates to events or occurrences that transpired while Executive was employed by the Company. Executive’s reasonable cooperation in connection with such claims or actions shall include, but not be limited to, being reasonably available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually
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convenient times. During and after Executive’s employment, Executive also shall reasonably cooperate with the Company or its affiliates in connection with any investigation or review of any Federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. The Company shall reimburse Executive for any reasonable out-of-pocket expenses incurred in connection with Executive’s performance of obligations pursuant to this Section 7(d).
8. Reimbursement of Executive Expenses . The Company shall reimburse Executive for reasonable legal fees incurred related to this Agreement, not to exceed $20,000 in the aggregate. Such reimbursement shall be made within thirty (30) days after Executive provides an invoice for such services to the Company (which invoice shall be provided within sixty (60) days following the Effective Date), but in any event no later than March 15 of the year following the year in which the fees are incurred.
9. Indemnification . Effective as of the Effective Date, the Company and Executive shall enter into an indemnification agreement in the form attached as Exhibit G . During the Term and thereafter, the Company shall indemnify Executive with respect to his services to the Company and its subsidiaries as an officer and director, including as a fiduciary of Company benefit plans, at levels not less than as provided in the Bylaws of the Company in effect on the Effective Date. In addition, (i) Executive shall both during the Term and thereafter be covered by directors and officers liability insurance to the same extent that such coverage is then maintained for officers or directors of the Company in active service, and (ii) any “tail” policy providing directors and officers liability coverage that covers a period of service in which Executive is or was in active service with the Company and/or any of its subsidiaries shall cover such service.
10. Successors and Assigns . This Agreement shall inure to the benefit of and be enforceable by the Company and its successors and assigns, and upon any such assignment, all references to the “Company” shall be deemed to refer to such successor or assignee, and by Executive and Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. Notwithstanding the foregoing, any assignment of this Agreement by the Company, other than to any parent entity or subsidiary (or any other subsidiary of ServiceMaster established for the purpose of furthering the Spin), in each such case in connection with the implementation of the Spin, shall be subject to Executive’s consent. This Agreement shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation or transfer of assets, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred.
11. Notice . All notices and other communications required or permitted under this Agreement (including the notice required by the definition of Good Reason as set forth in Exhibit A ) shall be in writing, shall be given by personal delivery, overnight delivery by an established courier service, or by certified mail, return receipt required, and shall be deemed to have been duly given when delivered, addressed (a) if to Executive, at his address in the records of the Company, and if to the Company, to American Home Shield, 150 Peabody Place,
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Memphis, Tennessee 38103, attention General Counsel or (b) to such other address as either party may have furnished to the other in writing in accordance herewith.
12. Entire Agreement; Amendments . Except as otherwise specified herein, this Agreement and the Exhibits constitute the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede and preempt any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter hereof.
13. Modification or Waiver . No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by Executive and a member of the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right which Executive or the Company may have hereunder shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
14. Governing Law; Validity . The interpretation, construction and performance of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to the principle of conflicts of laws. The invalidity or enforceability of any provision of this Agreement shall not affect the validity or enforceability of any of the other provisions of this Agreement, which other provisions shall remain in full force and effect.
15. Withholding . Any payments provided for herein shall be reduced by any amounts required to be withheld by the Company from time to time under applicable Federal, state or local income or employment tax laws or similar statutes or other provisions of law then in effect.
16. Payments by Subsidiaries . Executive acknowledges that one or more payments hereunder may be paid by one or more of the Company’s subsidiaries, and Executive agrees that any such payment made by such subsidiary shall satisfy the obligations of the Company hereunder with respect to (but only to the extent of) such payment.
17. Section 409A; Section 280G .
(a) To the extent that any reimbursement, fringe benefit, or other similar plan or arrangement in which Executive participates during the term of Executive’s employment under this Agreement or thereafter provides for a “ deferral of compensation ” within the meaning of Section 409A of the Code, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount eligible for reimbursement or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid); (iii) subject to any shorter time periods provided in any expense reimbursement policy of the Company, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the
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calendar year in which the expense was incurred; and (iv) the reimbursements shall be made pursuant to objectively determinable and nondiscretionary Company policies and procedures regarding such reimbursement of expenses. In addition, with respect to any payments or benefits subject to Section 409A, reference to Executive’s “Date of Termination” (and corollary terms) with the Company shall be construed to refer to Executive’s “ separation from service ” (as determined under Treas. Reg. Section 1.409A-1(h), as uniformly applied by the Company) with the Company. Whenever a provision under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company. Executive’s right to receive any installment payments hereunder shall, for purposes of Section 409A, be treated as a right to receive a series of separate and distinct payments. Any tax gross-up payment provided for under this Agreement shall in no event be paid to Executive later than the December 31 of the calendar year following the calendar year in which such taxes are remitted by Executive.
(b) To the extent that any of the payments and benefits provided for under this Agreement together with any payments or benefits under any other agreement or arrangement between the Company and Executive (collectively, the “Payments”) would constitute a “parachute payment” within the meaning of Section 280G of the Code, the amount of such Payments shall be reduced to the amount that would result in no portion of the Payments being subject to the excise tax imposed pursuant to Section 4999 of the Code if and only if such reduction would provide Executive with an after-tax amount greater than if there was no reduction. Any reduction shall be done in a manner that maximizes the amount to be retained by Executive, provided that to the extent any order is required to be set forth herein, then such reduction shall be applied in the following order: (i) payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) will be reduced next (if necessary, to zero), with amounts that are payable or deliverable last reduced first; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G- 1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); (iv) payments due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24 will be reduced next (if necessary, to zero), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24); and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) of this Section 7(b) will be next reduced prorata.
18. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first written above.
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AHS HOLDING COMPANY, INC. |
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By: |
/s/ Anthony D. DiLucente |
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Name: |
Anthony D. DiLucente |
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Title: |
Senior Vice President, Chief |
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Financial Officer |
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EXECUTIVE |
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By: |
/s/ Rex Tibbens |
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Rex Tibbens |
Solely for purposes of Sections 5 and 7 only with respect to the period prior to the Spin:
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ John Corness |
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Name: |
John Corness |
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Title: |
Chairman, Compensation Committee
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[ Signature Page to Employment Agreement ]
Exhibit A
As used in this Agreement, the following terms shall have the respective meanings set forth below:
(a) “ Cause ” means:
(1) a material breach by Executive of his duties and responsibilities (other than as a result of incapacity due to physical or mental illness) which is (x) demonstrably willful and deliberate on Executive’s part, (y) committed in bad faith or without reasonable belief that such breach is in the best interests of the Company and (z) not remedied within thirty (30) days after receipt of written notice from the Company specifying such breach; or
(2) Executive’s indictment for, conviction of or pleading guilty or nolo contendere to a felony or misdemeanor involving any act of fraud, embezzlement, or dishonesty, or any other intentional misconduct by Executive that adversely and significantly affects the business affairs or reputation of the Company or an affiliated company; or
(3) any failure by Executive to reasonably cooperate with any investigation or inquiry into Executive’s business practices, whether internal or external, including, but not limited to Executive’s refusal to be deposed or to provide testimony at any trial or inquiry.
Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause unless he has: (i) had ten (10) days’ written notice setting forth the reasons for the Company’s intention to terminate for Cause; (ii) had an opportunity to be heard before the Board; and (iii) received a notice of termination from the Board stating that in the opinion of a majority of the full Board (excluding Executive) that Executive is responsible for conduct of a type set forth above and specifying in reasonable detail the particulars thereof.
(b) “ Change in Control ” shall have the meaning set forth in the Stock Incentive Plan; provided that in the event such definition shall be modified or revised in the Stock Incentive Plan, then the definition of Change in Control for purposes of this Agreement shall be so modified or revised.
(c) “ Disability ” for purposes of this Agreement, shall be defined as the inability of Executive to have performed Executive’s material duties hereunder due to a physical or mental injury, infirmity or incapacity for one hundred eighty (180) days (including weekends and holidays) in any 365-day period.
(d) “ Good Reason ” means, without Executive’s written consent, the occurrence of any of the following events:
(1) any of (i) the reduction in any material respect in Executive’s position(s), authorities or responsibilities as a president and chief executive officer of (A) prior to the Spin, a wholly owned division of a publicly traded company and (B) after the
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Spin, a publicly traded company, (ii) the failure of ServiceMaster to complete the Spin on or before March 31, 2019 (the “ Spin Trigger ”), which initial March 31, 2019 Spin Trigger date may be extended by ServiceMaster up to and including November 30, 2019, upon the prior written consent of Executive (the “ Spin Trigger Extended Date ”), or (iii) prior to the Spin, Executive no longer reporting directly to (A) the Chief Executive Officer of the ServiceMaster and (B) after the Spin, the board of directors of a publicly-traded company;
(2) a material reduction in Executive’s Base Salary or Target Bonus, each as in effect on the Effective Date or as the same may be increased from time to time thereafter; except for any reduction by not more than ten (10) percent from Executive’s highest Base Salary or Target Bonus, to the extent a ten (10) percent reduction is applied equally to all named executive officers of the Company (or prior to the Spin, ServiceMaster);
(3) a material change in the location of Executive’s location of work that will be at least more than fifty (50) miles from the Company’s corporate offices as of the Effective Date; or
(4) any action or inaction by the Company that constitutes a material breach of the terms of this Agreement.
If Executive determines that Good Reason exists, Executive must notify the Company in writing, within ninety (90) days following the initial existence of such grounds that Executive determines constitutes Good Reason, or such event shall not constitute Good Reason under the terms of Executive’s employment. If the Company remedies such event within thirty (30) days following receipt of such notice, Executive may not terminate employment for Good Reason as a result of such event (the “ Cure Period ”). In the event the Company does not timely remedy such event, Executive must terminate his employment ninety (90) days following the end of the Cure Period. For the avoidance of doubt, in no event shall “Good Reason” exist solely as a result of Executive remaining CEO of the Company immediately following the Spin. Notwithstanding the foregoing, Executive may only resign for Good Reason under the Spin Trigger if Executive terminates employment during the earlier of (a) the later of April 2019 or the calendar month following the Spin Trigger Extended Date (which for the avoidance of doubt shall be no later than during December 2019) or (b) within thirty (30) days after an announcement by the Company that it is formally abandoning the planned Spin.
(e) “ Stock Incentive Plan ” shall mean that certain Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (and any successor plan, including for these purposes the stock incentive plan for the Company after the Spin to the extent its terms govern the relevant awards).
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Exhibit B
Sign-On Restricted Stock Unit Agreement
(see Exhibit 10.2 to ServiceMaster’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2018)
Exhibit C
Sign-On Stock Option Agreement
(see Exhibit 10.3 to ServiceMaster’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2018)
Exhibit D
Restricted Stock Unit Agreement
(see Exhibit 10.4 to ServiceMaster’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2018)
Exhibit E
Stock Option Agreement
(see Exhibit 10.5 to ServiceMaster’s Quarterly Report on Form 10-Q
for the quarter ended June 30, 2018)
Exhibit F
Release Provisions
Release and Waiver of Claims . In consideration of the payments and benefits to which you are entitled under the Employment Agreement, dated as of May 15, 2018, to which you and American Home Shield (the “ Company ”) are parties (the “ Employment Agreement ”), you hereby waive and release and forever discharge the Company and its parent and former parent entities, subsidiaries, divisions, limited partnerships, affiliated corporations, successors and assigns and their respective past and present directors, managers, officers, stockholders, partners, agents, employees, insurers, attorneys, and servants each in his, her or its capacity as such, and each of them, separately and collectively (collectively, “ Releasees ”), from any and all existing claims, charges, complaints, liens, demands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, whether or not mature or ripe, that you ever had and now have against any Releasee including, but not limited to, claims and causes of action arising out of or in any way related to your employment with or separation from the Company, to any services performed for the Company, to any status, term or condition in such employment, or to any physical or mental harm or distress from such employment or non-employment or claim to any hire, rehire or future employment of any kind by the Company, all to the extent allowed by applicable law. This release of claims includes, but is not limited to, claims based on express or implied contract, compensation plans, covenants of good faith and fair dealing, wrongful discharge, claims for discrimination, harassment and retaliation, violation of public policy, tort or common law, whistleblower or retaliation claims; and claims for additional compensation or damages or attorneys’ fees or claims under federal, state, and local laws, regulations and ordinances, including but not limited to Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Worker Adjustment and Retraining Notification Act (“ WARN ”), or equivalent state WARN act, the Employee Retirement Income Security Act, and the Sarbanes-Oxley Act of 2002. You understand that this release of claims includes a release of all known and unknown claims through the date on which this release of claims becomes irrevocable (the “ Effective Date ”). However, nothing in this Agreement prevents you from making any reports to or receiving any awards from the SEC or OSHA based upon the your reporting of violations of laws or regulations containing whistleblower provisions.
Limitation of Release : Notwithstanding the foregoing, this release of claims will not prohibit you from filing a charge of discrimination with the National Labor Relations Board, the Equal Employment Opportunity Commission or an equivalent state civil rights agency, but you agree and understand that you are waiving your right to monetary compensation thereby if any such agency elects to pursue a claim on your behalf. Further, nothing in this release of claims shall be construed to waive any right that is not subject to waiver by private agreement under federal, state or local employment or other laws, such as claims for workers’ compensation or unemployment benefits or any claims that may arise after the Effective Date. In addition, nothing in this release of claims will be construed to affect any of the following claims, all rights in respect of which are reserved:
(a) Any payment or benefit set forth in this Employment Agreement;
(b) Reimbursement of unreimbursed business expenses properly incurred prior to the termination date in accordance with Company policy;
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(c) Claims under the Equity Awards Agreements (as defined in the Employment Agreement) in respect of vested Equity Awards (as defined in the Employment Agreement) then held by you and claims in respect of Common Stock solely in your capacity as a holder of Common Stock;
(d) Vested benefits under the general Company employee benefit plans (other than severance pay or termination benefits, all rights to which are hereby waived and released);
(e) Any claim for unemployment compensation or workers’ compensation administered by a state government to which you are presently or may become entitled;
(f) Any claim that the Company has breached this release of claims; and
(g) Indemnification as a current or former director or officer of the Company or any of its subsidiaries (including as a fiduciary of any employee benefit plan), or inclusion as a beneficiary of any insurance policy related to your service in such capacity.
Covenants Not to Sue. To the extent that any claims covered by the scope of the release
herein is not subject to waiver by applicable law (including, without limitation, any claims arising under or related to FMLA, FLSA, and any other local, state or federal statute governing employment and/or the payment of wages and benefits), you hereby covenant and agree not to sue or otherwise seek any remedy or other form of relief against any of the Releasees relating to such claims.
Representations . You represent that you have been provided all benefits due under the Family and Medical Leave Act and that you have received all wages due, including overtime pay, premium pay, vacation pay, bonus pay, commissions, or other compensation, and that you have received all appropriate meals and rest breaks to which you were entitled, in compliance with the Fair Labor Standards Act and applicable state and local law, that you have no known workplace injuries or occupational diseases, and that you have not made any report of or opposed any fraud or other wrong doing at the Company and that you have not been retaliated against for reporting or opposing any alleged fraud or other wrongdoing at the Company.
Return of Company Property . Not later than the Effective Date, you agree to return, or hereby represent that you have returned as of such date (if you have not signed this Agreement by such date), to the Company all Company property, equipment and materials, including, but not limited to, any company vehicle, any laptop computer and peripherals; any cell phone or other portable computing device; any telephone calling cards; keys; Company identification card; any credit or fuel cards; and all tangible written or graphic materials (and all copies) relating in any way to the Company or its business, including, without limitations, documents, manuals, customer lists and reports, as well as all data contained on computer files, “thumb” drives, “cloud” services, or other data storage device, or home or personal computers and/or e ‑mail or internet accounts. Provided, however, Executive may retain his address book to the extent it only contains contact information and the Company shall cooperate with Executive on the transfer of his cell phone number to Executive.
Performance Share Termination Agreement
This Performance Share Termination Agreement (this “Award Termination Agreement”), dated as of July __, 2018 (the “Termination Date”), between ServiceMaster Global Holdings, Inc., a Delaware Corporation (the “Company”), and ____________ (the “Participant”).
WHEREAS, the Company and the Participant entered into a Performance Share Agreement, dated as of [ ] (the “Award Agreement”).
WHEREAS, the Company and the Participant desire to terminate the Award Agreement, effective July 31, 2018.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and subject to the terms and conditions set forth herein, the parties agree as follows:
1. The Award Agreement shall terminate as of July 31, 2018 without any further action by the Company or the Participant.
2. The Participant agrees that such termination shall be final and without regard to whether any vesting conditions (including any performance conditions) set forth in the Award Agreement or the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “Plan”) are or become satisfied.
3. Participant hereby waives any rights, title or interests in or arising under or in connection with such Award and under the Plan in connection with such Award, including the right to dividend equivalents.
4. The Company hereby waives enforcement of the restrictive covenants set forth in such Award Agreement provided that such waiver shall not apply to restrictive covenants set forth in other agreements between the Company and the Participant or policies of the Company.
5. This Award Termination Agreement shall be binding upon and inure to the benefit of the parties to this Award Termination Agreement and their respective successors and assigns. Nothing in this Award Termination Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Award Termination Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
6. Any dispute or controversy between the Participant and the Company, whether arising out of or relating to this Award Termination Agreement , the breach of this Award Termination Agreement, or otherwise, shall be resolved in accordance with the ServiceMaster We Listen Dispute Resolution Plan then in effect. Notwithstanding the foregoing, the Participant agrees that the Company may seek a temporary restraining order and/or preliminary injunction in any court of competent jurisdiction, without the posting of a bond, in order to preserve the status quo.
7. This Award Termination Agreement shall be governed in all respects, including, but not limited to, as to validity, interpretation and effect, by the internal laws of the State of Delaware, without reference to principles of conflict of law that would require application of the law of another jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Award Termination Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
8. This Award Termination Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first written above.
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PARTICIPANT |
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
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Name: |
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Title: |
Exhibit 10.2
Sign-On Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “ Award Agreement ”), dated as of May 15, 2018 (the “ Grant Date ”), between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and Rex Tibbens (the “ Participant ”), is being entered into pursuant to Article IX of the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms that are not defined in this Award Agreement may be found in the Plan. Reference is made to that certain Employment Agreement between the Company and the Participant, dated May 15, 2018 (the “ Employment Agreement ”), pursuant to which the Participant commenced employment with the Company on May 15, 2018 (the “ Start Date ”).
The Company and the Participant hereby agree as follows:
Section 1. Confirmation of Grant . Subject to the terms of this Award Agreement, the Company hereby evidences and confirms, effective as of the Grant Date, its grant to the Participant of Restricted Stock Units representing the right to receive 17,523 Shares. This Award Agreement is entered into pursuant to, and the terms of the Restricted Stock Units are subject to, the terms of the Plan. If there is any conflict between this Award Agreement and the terms of the Plan, the terms of the Plan shall govern.
Section 2. Vesting and Forfeiture . The Restricted Stock Units shall vest in three equal installments on the first, second and third anniversaries of the Start Date, subject to the Participant’s continued employment with the Company or any subsidiary through the applicable vesting date.
Section 3. Effect of Termination of Employment . Upon termination of the Participant’s employment with the Company and its Subsidiaries for any reason prior to the Vesting Date, the Restricted Stock Units evidenced by this Award Agreement shall be forfeited, provided that if the Participant’s employment is terminated:
(a) in a “ Special Termination ” ( i.e. , by reason of the Participant’s death or Disability (as defined in the Employment Agreement)), then the Participant’s Restricted Stock Units evidenced by this Award Agreement shall vest as to the number of Restricted Stock Units that would have vested on the next anniversary of the Start Date (assuming the Participant’s employment had continued through such anniversary) multiplied by a fraction, the numerator of which is the number of days elapsed since (x) the Start Date, if the Special Termination occurs on or prior to the first anniversary of the Start Date, or (y) the most recent prior anniversary of the Start Date, if the Special Termination occurs after the first anniversary of the Start Date, and the denominator of which is 365; and
(b) In a termination of employment pursuant to Section 6(a) of the Employment Agreement that occurs prior to the Vesting Date (a “ Qualifying Termination ”), then the Participant’s Restricted Stock Units evidenced by this Award Agreement that are unvested shall become vested.
The Participant, or the Participant’s estate or beneficiary, shall receive one Share in respect of each such vested Restricted Stock Unit within 75 days following, as applicable,
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the date of the Special Termination or, subject to the Participant’s satisfaction of his obligations under Section 6(g) of the Employment Agreement, a Qualifying Termination.
Section 4. Dividend Equivalents; Impact of Spin-Off . If the Company pays any cash dividend or similar cash distribution on the Company Common Stock, the Company shall credit to the Participant with an additional number of Restricted Stock Units (“ Dividend Shares ”) equal to the (A) product of ( x ) the number of Restricted Stock Units plus the number of additional Dividend Shares held by the Participant as of the record date for such distribution times ( y ) the per share amount of such dividend or similar cash distribution on Company Common Stock divided by (B) the Fair Market Value of a Share on the dividend payment date, rounded down to the nearest whole number. Notwithstanding the foregoing or anything set forth in this Agreement to the contrary, upon the occurrence of the completion of the spin-off of AHS Holding Company, Inc. (“ AHS ”) by the Company (the “ Spin-Off ”), the Participant’s Restricted Stock Units shall be adjusted in accordance with Section 4.3 of the Plan such that, upon completion of the Spin-Off, the Participant shall be entitled to an adjusted Award which relates solely to: (i) if, on and immediately following the Spin-Off, the Participant remains employed with the Company (or any Subsidiary thereof following the Spin-Off), the securities of the Company; or (ii) if the Participant, immediately following the Spin-Off, is employed with AHS or any Subsidiary thereof, the securities of AHS.
Section 5. Settlement; Taxes .
(a) Except as otherwise provided in Article XIV of the Plan and in Section 4, promptly following the date on which the number of Restricted Stock Units that vest is certified by the Administrator pursuant to Section 2 of this Award Agreement, but in any event not later than March 15 of the calendar year following the calendar year of the Vesting Date, the Participant shall receive one Share in respect of each such vested Restricted Stock Units.
(b) In connection with the vesting and settlement of the Restricted Stock Units as provided in this Award Agreement, the Company or one of its Subsidiaries may require the Participant to remit to the Company an amount in cash sufficient to satisfy any applicable Withholding Taxes that may arise in connection therewith, in accordance with the provisions of Section 15.11 of the Plan; provided, however, that if at such time of vesting and settlement, the Participant is prohibited from trading or otherwise selling Shares due to the application of any trading policy of the Company or applicable law, the Company shall withhold Shares that would otherwise be issued to the Participant pursuant to Section 5(a) above to satisfy the Withholding Taxes, in accordance with the provisions of Section 15.11 that apply to such net settlement of Withholding Taxes.
Section 6. Miscellaneous .
(a) Restrictive Covenants . In consideration of the grant of the Restricted Stock Units, during the Participant’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twelve (12) months following the termination of the Participant’s employment (whether such termination is initiated by the Participant or the Participant’s employer), the Participant shall be subject to the restrictive covenants set forth in Section 7 of the Employment Agreement.
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(b) Dispute Resolution . Any dispute or controversy between the Participant and any member of the Company Group, whether arising out of or relating to this Award Agreement, the breach of this Award Agreement, or otherwise, shall be resolved in accordance with the dispute resolution provisions set forth in the Employment Agreement.
(c) Incorporation of Forfeiture Provisions . The Participant acknowledges and agrees that, pursuant to the Plan, the Participant shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Award Agreement or as required by applicable law after the date of this Award Agreement.
(d) Authorization to Share Personal Data . The Participant authorizes any Affiliate of the Company that employs the Participant or that otherwise has or lawfully obtains personal data relating to the Participant to divulge such personal data to the Company if and to the extent appropriate in connection with this Award Agreement or the administration of the Plan.
(e) No Right to Continued Employment . Nothing in this Award Agreement shall be deemed to confer on the Participant any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(f) Binding Effect; Benefits . This Award Agreement shall be binding upon and inure to the benefit of the parties to this Award Agreement and their respective successors and assigns. Nothing in this Award Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Award Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(g) Waiver; Amendment . The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder. This Award Agreement may not be amended, modified or supplemented, except ( i ) by a written instrument executed by the Participant and the Company or ( ii ) as authorized under the Plan (including under Section 4.3 of the Plan).
(h) Applicable Law . This Award Agreement shall be governed in all respects, including, but not limited to, as to validity, interpretation and effect, by the internal laws of the State of Delaware, without reference to principles of conflict of law that would require application of the law of another jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Award Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
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(i) Section 409A . Section 15.12 of the Plan shall apply to this Award and is incorporated herein by reference.
(j) Section and Other Headings, etc. The section and other headings contained in this Award Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Award Agreement.
(k) Counterparts . This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Participant have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ Dion Persson |
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Name: Dion Persson |
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Title: Senior Vice President, Business Development |
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THE PARTICIPANT: |
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/s/ Rex Tibbens |
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Name: Rex Tibbens |
Exhibit 10.3
Sign-On Stock Option Agreement
This Employee Stock Option Agreement, dated as of May 15, 2018 (the “ Grant Date ”), between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and the associate whose name appears on the signature page hereof and who is employed by the Company or one of its Subsidiaries (the “ Associate ”), is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms used, but not otherwise defined, in this Agreement may be found in the Plan. Reference is made to that certain Employment Agreement between the Company and the Associate, dated May 15, 2018 (the “ Employment Agreement ”), pursuant to which the Associate commenced employment with the Company on May 15, 2018 (the “ Start Date ”).
The Company and the Associate hereby agree as follows:
Section 1. Grant of Options .
(a) Confirmation of Grant . The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Associate of Options to purchase the number of shares of Company Common Stock specified on the signature page hereof. The Options are not intended to be Incentive Stock Options. This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan. If there is any inconsistency between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
(b) Option Price . Each share covered by an Option shall have the Option Price specified on the signature page hereof.
Section 2. Vesting and Exercisability .
(a) Vesting Schedule . Except as otherwise provided in the Plan or Section 2(b) of this Agreement, the Options shall become vested in four equal annual installments on each of the first through fourth anniversaries of the Start Date, subject to the continuous employment of the Associate with the Company through each applicable vesting date; provided that if, subject to the Associate’s compliance with his obligations under Section 6(g) of the Employment Agreement, the Associate’s employment with the Company is terminated by reason of the Associate’s death or Disability (as defined in the Employment Agreement), any Options held by the Associate shall immediately vest as of the effective date of such termination.
(b) Discretionary Acceleration . The Administrator, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time.
(c) Exercise . Once vested in accordance with the provisions of this Agreement, the Options may be exercised at any time and from time to time prior to the date such Options terminate pursuant to Section 3. Options may only be exercised with respect to whole shares and must be exercised in accordance with Section 4.
Section 3. Termination of Options .
(a) Normal Termination Date . Unless earlier terminated pursuant to Section 3(b) or the Plan, the Options shall terminate on the tenth anniversary of the Grant Date (the “ Normal Termination Date ”), if not exercised prior to such date.
(b) Early Termination . If the Associate’s employment with the Company terminates for any reason, any Options held by the Associate that have not vested before the effective date of such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) or that do not become vested on such date in accordance with Section 2 shall terminate immediately upon such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) and, if the Associate’s employment is terminated for Cause, all Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination. All vested Options held by the Associate following the effective date of a termination of employment shall remain exercisable until the first to occur of ( i ) the one-year anniversary in the case of a termination by reason of the Associate’s death or Disability or a retirement from active service on or after the Associate reaches normal retirement age, or in the event of any other termination of employment, the three-month anniversary of the effective date of the Associate’s termination of employment (determined without regard to any deemed or express statutory or contractual notice period), ( ii ) the Normal Termination Date or ( iii ) the cancellation of the Options pursuant to Section 5(a), and if not exercised within such period the Options shall automatically terminate upon the expiration of such period.
Section 4. Manner of Exercise . Subject to such reasonable administrative regulations as the Administrator may adopt from time to time, the exercise of vested Options by the Associate shall be pursuant to procedures set forth in the Plan or established by the Administrator from time to time and shall include the Associate specifying the proposed date on which the Associate desires to exercise a vested Option (the “ Exercise Date ”), the number of whole shares with respect to which the Options are being exercised (the “ Exercise Shares ”) and the aggregate Option Price for such Exercise Shares (the “ Exercise Price ”) or such other or different requirements as may be imposed by the Company. Unless otherwise determined by the Administrator, ( i ) on or before the Exercise Date the Associate shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus any required withholding taxes or other similar taxes, charges or fees (including, if available, pursuant to a broker-assisted cashless exercise program established by the Company whereby the Associate may exercise vested Options by an exercise-and-sell procedure in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is obtained from the sale of shares in the public market) and ( ii ) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent). The Company may require the Associate to furnish or execute such other documents as the Company shall reasonably deem necessary ( i ) to evidence such exercise or ( ii ) to comply with or satisfy the requirements of the Securities Act, applicable state or non ‑ U.S. securities laws or any other law.
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Section 5. Change in Control; Impact of Spin-Off on Options .
(a) Vesting and Cancellation . Except as otherwise provided in Section 5(b), in the event of a Change in Control, all then-outstanding Options (whether vested or unvested) shall be canceled in exchange for a payment having a value equal to the excess, if any, of ( i ) the product of the Change in Control Price multiplied by the aggregate number of shares covered by all such Options immediately prior to the Change in Control over ( ii ) the aggregate Option Price for all such shares, to be paid as soon as reasonably practicable, but in no event later than 30 days following the Change in Control.
(b) Alternative Award . Notwithstanding Section 5(a), no cancellation, termination, or settlement or other payment shall occur with respect to any Option if the Administrator reasonably determines prior to the Change in Control that the Associate shall receive an Alternative Award meeting the requirements of the Plan; provided , however , that if this Section 5(b) becomes operative, but the Associate’s employment is terminate by the Company without Cause or the Associate resigns with Good Reason and any such termination occurs between the date a definitive agreement is signed by the Company contemplating transactions which, if consummated, would result in a Change in Control and the date that is twenty-four (24) months following the Change in Control, all then outstanding unvested Options shall become immediately vested and exercisable.
(c) Impact of Spin-Off . Notwithstanding anything set forth in this Agreement to the contrary, upon the occurrence of the completion of the spin-off of AHS Holding Company, Inc. (“ AHS ”) by the Company (the “ Spin-Off ”), the Associate’s Options shall be adjusted in accordance with Section 4.3 of the Plan such that, upon completion of the Spin-Off, the Associate shall be entitled to an adjusted Award which relates solely to: (i) if, on and immediately following the Spin-Off, the Associate remains employed with the Company (or any Subsidiary thereof following the Spin-Off), the securities of the Company; or (ii) if the Associate, immediately following the Spin-Off, is employed with AHS or any Subsidiary thereof, the securities of AHS.
Section 6. Miscellaneous .
(a) Withholding . In connection with the exercise of any of the Options as provided in this Award Agreement, the Company or one of its Subsidiaries may require the Associate to remit to the Company an amount in cash sufficient to satisfy any applicable Withholding Taxes that may arise in connection therewith, in accordance with the provisions of Section 15.11 of the Plan; provided, however , that if at such time of exercise, the Associate is prohibited from trading or otherwise selling Shares due to the application of any trading policy of the Company or applicable law, the Company shall withhold Shares that would otherwise be issued to the Associate pursuant to Section 4 above to satisfy the Withholding Taxes, in accordance with the provisions of Section 15.11 that apply to such net settlement of Withholding Taxes.
(b) Incorporation of Forfeiture Provisions . The Associate acknowledges and agrees that, pursuant to the Plan, he or she shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Agreement or as required by applicable law after the date of this Agreement.
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(c) Restrictive Covenants . In consideration of the grant of the Option, during the Associate’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twenty-four (24) months following the termination of the Associate’s employment (whether such termination is initiated by the Associate or the Associate’s employer), the Associate shall be subject to the restrictive covenants set forth in Section 7 of the Employment Agreement.
(d) Dispute Resolution . Any dispute or controversy between Associate and the Company, whether arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be resolved in accordance with the dispute resolutions in the Employment Agreement.
(e) Authorization to Share Personal Data . The Associate authorizes any Affiliate of the Company that employs the Associate or that otherwise has or lawfully obtains personal data relating to the Associate to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan.
(f) No Rights as Stockholder; No Voting Rights . The Associate shall have no rights as a stockholder of the Company with respect to any shares covered by the Options until the exercise of the Options and delivery of the shares.
(g) No Right to Continued Employment . Nothing in this Agreement shall be deemed to confer on the Associate any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(h) Non-Transferability of Options . The Options may be exercised only by the Associate. The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Associate upon the Associate’s death or with the Company’s consent.
(i) Binding Effect; Benefits . This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(j) Waiver; Amendment .
1. Waiver . Any party hereto or beneficiary hereof may by written notice to the other parties ( A ) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, ( B ) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and ( C ) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding
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sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.
2. Amendment . This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Associate and the Company.
(k) Assignability . Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Associate without the prior written consent of the other party.
(l) Applicable Law and Forum . This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
(m) Waiver of Jury Trial . Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby. Each party ( i ) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and ( ii ) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this section.
(n) Section and Other Headings, etc. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(o) Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Associate have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ Dion Persson |
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Name: Dion Persson |
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Title: Senior Vice President, Business Development |
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ASSOCIATE: |
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/s/ Rex Tibbens |
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Name: Rex Tibbens |
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Total Number of Shares
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Option Price |
58,140 Shares |
$ 57.07 |
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Restricted Stock Unit Agreement
This Restricted Stock Unit Agreement (this “ Award Agreement ”), dated as of May 15, 2018 (the “ Grant Date ”), between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and Rex Tibbens (the “ Participant ”), is being entered into pursuant to Article IX of the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms that are not defined in this Award Agreement may be found in the Plan. Reference is made to that certain Employment Agreement between the Company and the Associate, dated May 15, 2018 (the “ Employment Agreement ”).
The Company and the Participant hereby agree as follows:
Section 1. Confirmation of Grant . Subject to the terms of this Award Agreement, the Company hereby evidences and confirms, effective as of the Grant Date, its grant to the Participant of Restricted Stock Units representing the right to receive 10,952 Shares. This Award Agreement is entered into pursuant to, and the terms of the Restricted Stock Units are subject to, the terms of the Plan. If there is any conflict between this Award Agreement and the terms of the Plan, the terms of the Plan shall govern.
Section 2. Vesting and Forfeiture . The Restricted Stock Units shall vest in three equal installments on the first, second and third anniversaries of February 18, 2018, subject to the Participant’s continued employment with the Company or any subsidiary through the applicable vesting date.
Section 3. Effect of Termination of Employment . Upon termination of the Participant’s employment with the Company and its Subsidiaries for any reason prior to the Vesting Date, the Restricted Stock Units evidenced by this Award Agreement shall be forfeited, provided that if the Participant’s employment is terminated:
(a) in a “Special Termination” ( i.e. , by reason of the Participant’s death or Disability (as defined in the Employment Agreement)), then the Participant’s Restricted Stock Units evidenced by this Award Agreement shall vest as to the number of Restricted Stock Units that would have vested on the next anniversary of the Grant Date (assuming the Participant’s employment had continued through such anniversary) multiplied by a fraction, the numerator of which is the number of days elapsed since (x) the Grant Date, if the Special Termination occurs on or prior to the first anniversary of the Grant Date, or (y) the most recent prior anniversary of the Grant Date, if the Special Termination occurs after the first anniversary of the Grant Date, and the denominator of which is 365.
The Participant, or the Participant’s estate or beneficiary, shall receive one Share in respect of each such vested Restricted Stock Unit within 75 days following the date of the Special Termination.
Section 4. Dividend Equivalents; Impact of Spin-Off . If the Company pays any cash dividend or similar cash distribution on the Company Common Stock, the Company shall credit to the Participant with an additional number of Restricted Stock Units (“ Dividend Shares ”) equal to the (A) product of ( x ) the number of Restricted Stock Units plus the number of additional Dividend Shares held by the Participant as of the record date for such distribution times ( y ) the per share amount of such dividend or similar cash distribution on Company Common Stock divided by (B) the Fair Market Value of a Share on the dividend payment date, rounded down to the nearest
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whole number. Notwithstanding the foregoing or anything set forth in this Agreement to the contrary, upon the occurrence of the completion of the spin-off of AHS Holding Company, Inc. (“ AHS ”) by the Company (the “ Spin-Off ”), the Participant’s Restricted Stock Units shall be adjusted in accordance with Section 4.3 of the Plan such that, upon completion of the Spin-Off, the Participant shall be entitled to an adjusted Award which relates solely to: (i) if, on and immediately following the Spin-Off, the Participant remains employed with the Company (or any Subsidiary thereof following the Spin-Off), the securities of the Company; or (ii) if the Participant, immediately following the Spin-Off, is employed with AHS or any Subsidiary thereof, the securities of AHS.
Section 5. Settlement; Taxes .
(a) Except as otherwise provided in Article XIV of the Plan and in Section 4, promptly following the date on which the number of Restricted Stock Units that vest is certified by the Administrator pursuant to Section 2 of this Award Agreement, but in any event not later than March 15 of the calendar year following the calendar year of the Vesting Date, the Participant shall receive one Share in respect of each such vested Restricted Stock Units.
(b) In connection with the vesting and settlement of the Restricted Stock Units as provided in this Award Agreement, the Company or one of its Subsidiaries may require the Participant to remit to the Company an amount in cash sufficient to satisfy any applicable Withholding Taxes that may arise in connection therewith, in accordance with the provisions of Section 15.11 of the Plan; provided, however, that if at such time of vesting and settlement, the Participant is prohibited from trading or otherwise selling Shares due to the application of any trading policy of the Company or applicable law, the Company shall withhold Shares that would otherwise be issued to the Participant pursuant to Section 5(a) above to satisfy the Withholding Taxes, in accordance with the provisions of Section 15.11 that apply to such net settlement of Withholding Taxes.
Section 6. Miscellaneous .
(a) Restrictive Covenants . In consideration of the grant of the Restricted Stock Units, during the Participant’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twelve (12) months following the termination of the Participant’s employment (whether such termination is initiated by the Participant or the Participant’s employer), the Participant shall be subject to the restrictive covenants set forth in Section 7 of the Employment Agreement.
(b) Dispute Resolution . Any dispute or controversy between the Participant and any member of the Company Group, whether arising out of or relating to this Award Agreement, the breach of this Award Agreement, or otherwise, shall be resolved in accordance with the dispute resolution provisions set forth in the Employment Agreement.
(c) Incorporation of Forfeiture Provisions . The Participant acknowledges and agrees that, pursuant to the Plan, the Participant shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Award Agreement or as required by applicable law after the date of this Award Agreement.
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(d) Authorization to Share Personal Data . The Participant authorizes any Affiliate of the Company that employs the Participant or that otherwise has or lawfully obtains personal data relating to the Participant to divulge such personal data to the Company if and to the extent appropriate in connection with this Award Agreement or the administration of the Plan.
(e) No Right to Continued Employment . Nothing in this Award Agreement shall be deemed to confer on the Participant any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(f) Binding Effect; Benefits . This Award Agreement shall be binding upon and inure to the benefit of the parties to this Award Agreement and their respective successors and assigns. Nothing in this Award Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Award Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(g) Waiver; Amendment . The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Award Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder. This Award Agreement may not be amended, modified or supplemented, except ( i ) by a written instrument executed by the Participant and the Company or ( ii ) as authorized under the Plan (including under Section 4.3 of the Plan).
(h) Applicable Law . This Award Agreement shall be governed in all respects, including, but not limited to, as to validity, interpretation and effect, by the internal laws of the State of Delaware, without reference to principles of conflict of law that would require application of the law of another jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Award Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
(i) Section 409A . Section 15.12 of the Plan shall apply to this Award and is incorporated herein by reference.
(j) Section and Other Headings, etc. The section and other headings contained in this Award Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Award Agreement.
(k) Counterparts . This Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Participant have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ Dion Persson |
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Name: Dion Persson |
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Title: Senior Vice President, Business Development |
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THE PARTICIPANT: |
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/s/ Rex Tibbens |
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Name: Rex Tibbens |
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Stock Option Agreement
This Employee Stock Option Agreement, dated as of May 15, 2018 (the “ Grant Date ”), between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and the associate whose name appears on the signature page hereof and who is employed by the Company or one of its Subsidiaries (the “ Associate ”), is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms used, but not otherwise defined, in this Agreement may be found in the Plan. Reference is made to that certain Employment Agreement between the Company and the Associate, dated May 15, 2018 (the “ Employment Agreement ”).
The Company and the Associate hereby agree as follows:
Section 1. Grant of Options .
(a) Confirmation of Grant . The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Associate of Options to purchase the number of shares of Company Common Stock specified on the signature page hereof. The Options are not intended to be Incentive Stock Options. This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan. If there is any inconsistency between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
(b) Option Price . Each share covered by an Option shall have the Option Price specified on the signature page hereof.
Section 2. Vesting and Exercisability .
(a) Vesting Schedule . Except as otherwise provided in the Plan or Section 2(b) of this Agreement, the Options shall become vested in four equal annual installments on each of the first through fourth anniversaries of February 18, 2018, subject to the continuous employment of the Associate with the Company through each applicable vesting date; provided that if, subject to the Associate’s compliance with his obligations under Section 6(g) of the Employment Agreement, the Associate’s employment with the Company is terminated by reason of the Associate’s death or Disability (as defined in the Employment Agreement), any Options held by the Associate shall immediately vest as of the effective date of such termination.
(b) Discretionary Acceleration . The Administrator, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time.
(c) Exercise . Once vested in accordance with the provisions of this Agreement, the Options may be exercised at any time and from time to time prior to the date such Options terminate pursuant to Section 3. Options may only be exercised with respect to whole shares and must be exercised in accordance with Section 4.
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Section 3. Termination of Options .
(a) Normal Termination Date . Unless earlier terminated pursuant to Section 3(b) or the Plan, the Options shall terminate on the tenth anniversary of the Grant Date (the “ Normal Termination Date ”), if not exercised prior to such date.
(b) Early Termination . If the Associate’s employment with the Company terminates for any reason, any Options held by the Associate that have not vested before the effective date of such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) or that do not become vested on such date in accordance with Section 2 shall terminate immediately upon such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) and, if the Associate’s employment is terminated for Cause, all Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination. All vested Options held by the Associate following the effective date of a termination of employment shall remain exercisable until the first to occur of ( i ) the one-year anniversary in the case of a termination by reason of the Associate’s death or Disability or a retirement from active service on or after the Associate reaches normal retirement age, or in the event of any other termination of employment, the three-month anniversary of the effective date of the Associate’s termination of employment (determined without regard to any deemed or express statutory or contractual notice period), ( ii ) the Normal Termination Date or ( iii ) the cancellation of the Options pursuant to Section 5(a), and if not exercised within such period the Options shall automatically terminate upon the expiration of such period.
Section 4. Manner of Exercise . Subject to such reasonable administrative regulations as the Administrator may adopt from time to time, the exercise of vested Options by the Associate shall be pursuant to procedures set forth in the Plan or established by the Administrator from time to time and shall include the Associate specifying the proposed date on which the Associate desires to exercise a vested Option (the “ Exercise Date ”), the number of whole shares with respect to which the Options are being exercised (the “ Exercise Shares ”) and the aggregate Option Price for such Exercise Shares (the “ Exercise Price ”) or such other or different requirements as may be imposed by the Company. Unless otherwise determined by the Administrator, ( i ) on or before the Exercise Date the Associate shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus any required withholding taxes or other similar taxes, charges or fees (including, if available, pursuant to a broker-assisted cashless exercise program established by the Company whereby the Associate may exercise vested Options by an exercise-and-sell procedure in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is obtained from the sale of shares in the public market) and ( ii ) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent). The Company may require the Associate to furnish or execute such other documents as the Company shall reasonably deem necessary ( i ) to evidence such exercise or ( ii ) to comply with or satisfy the requirements of the Securities Act, applicable state or non ‑ U.S. securities laws or any other law.
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Section 5. Change in Control; Impact of Spin-Off .
(a) Vesting and Cancellation . Except as otherwise provided in Section 5(b), in the event of a Change in Control, all then-outstanding Options (whether vested or unvested) shall be canceled in exchange for a payment having a value equal to the excess, if any, of ( i ) the product of the Change in Control Price multiplied by the aggregate number of shares covered by all such Options immediately prior to the Change in Control over ( ii ) the aggregate Option Price for all such shares, to be paid as soon as reasonably practicable, but in no event later than 30 days following the Change in Control.
(b) Alternative Award . Notwithstanding Section 5(a), no cancellation, termination, or settlement or other payment shall occur with respect to any Option if the Administrator reasonably determines prior to the Change in Control that the Associate shall receive an Alternative Award meeting the requirements of the Plan; provided , however , that if this Section 5(b) becomes operative, but the Associate’s employment is terminate by the Company without Cause or the Associate resigns with Good Reason and any such termination occurs between the date a definitive agreement is signed by the Company contemplating transactions which, if consummated, would result in a Change in Control and the date that is twenty-four (24) months following the Change in Control, all then outstanding unvested Options shall become immediately vested and exercisable.
(c) Impact of Spin-Off . Notwithstanding anything set forth in this Agreement to the contrary, upon the occurrence of the completion of the spin-off of AHS Holding Company, Inc. (“ AHS ”) by the Company (the “ Spin-Off ”), the Associate’s Options shall be adjusted in accordance with Section 4.3 of the Plan such that, upon completion of the Spin-Off, the Associate shall be entitled to an adjusted Award which relates solely to: (i) if, on and immediately following the Spin-Off, the Associate remains employed with the Company (or any Subsidiary thereof following the Spin-Off), the securities of the Company; or (ii) if the Associate, immediately following the Spin-Off, is employed with AHS or any Subsidiary thereof, the securities of AHS.
Section 6. Miscellaneous .
(a) Withholding . In connection with the exercise of any of the Options as provided in this Award Agreement, the Company or one of its Subsidiaries may require the Associate to remit to the Company an amount in cash sufficient to satisfy any applicable Withholding Taxes that may arise in connection therewith, in accordance with the provisions of Section 15.11 of the Plan; provided, however , that if at such time of exercise, the Associate is prohibited from trading or otherwise selling Shares due to the application of any trading policy of the Company or applicable law, the Company shall withhold Shares that would otherwise be issued to the Associate pursuant to Section 4 above to satisfy the Withholding Taxes, in accordance with the provisions of Section 15.11 that apply to such net settlement of Withholding Taxes.
(b) Incorporation of Forfeiture Provisions . The Associate acknowledges and agrees that, pursuant to the Plan, he or she shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Agreement or as required by applicable law after the date of this Agreement.
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(c) Restrictive Covenants . In consideration of the grant of the Option, during the Associate’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twenty-four (24) months following the termination of the Associate’s employment (whether such termination is initiated by the Associate or the Associate’s employer), the Associate shall be subject to the restrictive covenants set forth in Section 7 of the Employment Agreement.
(d) Dispute Resolution . Any dispute or controversy between Associate and the Company, whether arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be resolved in accordance with the dispute resolutions in the Employment Agreement.
(e) Authorization to Share Personal Data . The Associate authorizes any Affiliate of the Company that employs the Associate or that otherwise has or lawfully obtains personal data relating to the Associate to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan.
(f) No Rights as Stockholder; No Voting Rights . The Associate shall have no rights as a stockholder of the Company with respect to any shares covered by the Options until the exercise of the Options and delivery of the shares.
(g) No Right to Continued Employment . Nothing in this Agreement shall be deemed to confer on the Associate any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(h) Non-Transferability of Options . The Options may be exercised only by the Associate. The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Associate upon the Associate’s death or with the Company’s consent.
(i) Binding Effect; Benefits . This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(j) Waiver; Amendment .
1. Waiver . Any party hereto or beneficiary hereof may by written notice to the other parties ( A ) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, ( B ) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and ( C ) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding
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sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.
2. Amendment . This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Associate and the Company.
(k) Assignability . Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Associate without the prior written consent of the other party.
(l) Applicable Law and Forum . This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
(m) Waiver of Jury Trial . Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby. Each party ( i ) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and ( ii ) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this section.
(n) Section and Other Headings, etc. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(o) Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Associate have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ Dion Persson |
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Name: Dion Persson |
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Title: Senior Vice President, Business Development |
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ASSOCIATE: |
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/s/ Rex Tibbens |
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Name: Rex Tibbens |
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Total Number of Shares
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Option Price |
36,338 Shares |
$ 57.07 |
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Indemnification Agreement
Indemnification Agreement, dated as of May 15, 2018, between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and Rex Tibbens (“ Indemnitee ”).
WHEREAS, qualified persons are reluctant to serve corporations as directors unless they are provided with appropriate indemnification and insurance against claims arising out of their service to and activities on behalf of the corporations ; and
WHEREAS, the Company has determined that attracting and retaining such persons is in the best interests of the Company’s stockholders and that it is reasonable, prudent and necessary for the Company to indemnify such persons to the fullest extent permitted by applicable law and to provide reasonable assurance regarding insurance ;
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Defined Terms ; Construction .
(a) Defined Terms . As used in this Agreement, the following terms shall have the following meanings:
“ Affiliate ” means, with respect to any person, any other person directly or indirectly controlling, controlled by or under common control with such first person. For these purposes, “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person by reason of ownership of voting securities, by contract or otherwise.
“ Change in Control ” means, and shall be deemed to have occurred if, on or after the date of this Agreement, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries acting in such capacity, or (B) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing more than 50% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two consecutive years commencing from and after the date hereof, individuals who at the beginning of such period constitute the board of directors of the Company and any new director whose election by the board of directors of the Company or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by
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being converted into Voting Securities of the surviving entity) at least 50% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of its assets, or (v) the Company shall file or have filed against it, and such filing shall not be dismissed, any bankruptcy, insolvency or dissolution proceedings, or a trustee, administrator or creditors committee shall be appointed to manage or supervise the affairs of the Company.
“ Corporate Status ” means the status of a person who is or was a director (or a member of any committee of a board of directors), officer, employee or agent (including without limitation a manager of a limited liability company) of the Company or any of its Subsidiaries, or of any predecessor thereof, or is or was serving at the request of the Company as a director (or a member of any committee of a board of directors), officer, employee or agent (including without limitation a manager of a limited liability company) of another entity, or of any predecessor thereof, including service with respect to an employee benefit plan.
“ Determination ” means a determination that either (x) there is a reasonable basis for the conclusion that indemnification of Indemnitee is proper in the circumstances because Indemnitee met a particular standard of conduct (a “ Favorable Determination ”) or (y) there is no reasonable basis for the conclusion that indemnification of Indemnitee is proper in the circumstances because Indemnitee met a particular standard of conduct (an “ Adverse Determination ”). An Adverse Determination shall include the decision that a Determination was required in connection with indemnification and the decision as to the applicable standard of conduct.
“ DGCL ” means the General Corporation Law of the State of Delaware, as amended from time to time.
“ Expenses ” means all attorneys’ fees and expenses, retainers, court, arbitration and mediation costs, transcript costs, fees and expenses of experts, witnesses and public relations consultants, bonds, costs of collecting and producing documents, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, appealing or otherwise participating in a Proceeding.
“ Independent Legal Counsel ” means an attorney or firm of attorneys competent to render an opinion under the applicable law, selected in accordance with the provisions of Section 6(e), who has not performed any services (other than services similar to those contemplated to be performed by Independent Legal Counsel under this Agreement) for the Company or any of its Subsidiaries or for Indemnitee within the last three years.
“ Proceeding ” means a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including without limitation a claim, demand, discovery request, formal or informal investigation, inquiry,
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administrative hearing, arbitration or other form of alternative dispute resolution, including an appeal from any of the foregoing.
“ Subsidiary ” means any corporation, limited liability company, partnership or other entity, a majority of whose outstanding voting securities is owned, directly or indirectly, by the Company.
“ Voting Securities ” means any securities of the Company that vote generally in the election of directors.
(b) Construction . For purposes of this Agreement,
(1) References to the Company and any of its Subsidiaries shall include any corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise that before or after the date of this Agreement is party to a merger or consolidation with the Company or any such Subsidiary or that is a successor to the Company as contemplated by Section 9(e) (whether or not such successor has executed and delivered the written agreement contemplated by Section 9(e)).
(2) References to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan.
(3) References to a “witness” in connection with a Proceeding shall include any interviewee or person called upon to produce documents in connection with such Proceeding.
2. Agreement to Serve .
Indemnitee agrees to serve as a director of the Company or one or more of its Subsidiaries and in such other capacities as Indemnitee may serve at the request of the Company from time to time, and by its execution of this Agreement the Company confirms its request that Indemnitee serve as a director and in such other capacities. Indemnitee shall be entitled to resign or otherwise terminate such service with immediate effect at any time, and neither such resignation or termination nor the length of such service shall affect Indemnitee’s rights under this Agreement. This Agreement shall not constitute an employment agreement, supersede any employment agreement to which Indemnitee is a party or create any right of Indemnitee to continued employment or appointment.
3. Indemnification .
(a) General Indemnification . The Company shall indemnify Indemnitee, to the fullest extent permitted by applicable law in effect on the date hereof or as amended to increase the scope of permitted indemnification, against Expenses, losses, liabilities, judgments, fines, penalties and amounts paid in settlement (including all interest, taxes, assessments and other charges in connection therewith) incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding in any way connected with, resulting from or relating to Indemnitee’s Corporate Status.
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(b) Additional Indemnification Regarding Expenses . Without limiting the foregoing, in the event any Proceeding is initiated by Indemnitee, the Company, any of its Subsidiaries or any other person to enforce or interpret this Agreement or any rights of Indemnitee to indemnification or advancement of Expenses (or related obligations of Indemnitee) under the Company’s or any such Subsidiary’s certificate of incorporation, bylaws or other organizational agreement or instrument, any other agreement to which Indemnitee and the Company or any of its Subsidiaries are party, any vote of stockholders or directors of the Company or any of its Subsidiaries, the DGCL, any other applicable law or any liability insurance policy, the Company shall indemnify Indemnitee against Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding in proportion to the success achieved by Indemnitee in such Proceeding, as determined by the court presiding over such Proceeding.
(c) Partial Indemnification . If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of any Expenses, losses, liabilities, judgments, fines, penalties and amounts paid in settlement incurred by Indemnitee, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for such portion.
(d) Nonexclusivity . The indemnification and advancement rights provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may now or in the future be entitled under the certificate of incorporation, bylaws or other organizational agreement or instrument of the Company or any of its Subsidiaries, any other agreement, any vote of stockholders or directors, the DGCL, any other applicable law or any liability insurance policy; provided that to the extent that Indemnitee is entitled to be indemnified by the Company under this Agreement and by any stockholder of the Company or any Affiliate of any such stockholder (other than the Company) under any other agreement or instrument, or by any insurer under a policy maintained by any such stockholder or affiliate, (i) the obligations of the Company hereunder shall be primary, and the obligations of such stockholder, affiliate or insurer secondary, and (ii) Indemnitee shall proceed first against the Company and any insurer under any policy maintained by the Company, second, if indemnification is not provided by the Company or any such insurer on a timely basis, against any insurer under a policy maintained by any such stockholder or affiliate, and third, if indemnification is not provided by the Company or any such insurer on a timely basis, against any such stockholder or affiliate. Any such stockholder or Affiliate shall be entitled to enforce the Company’s obligation to provide indemnification in accordance with the priorities set forth in this Section 3(d) directly against the Company, and each such stockholder or Affiliate shall constitute an express intended third party beneficiary under this Agreement for such purpose. In the event that any such stockholder or Affiliate makes indemnification payments or advances to Indemnitee in respect of any Expenses, losses, liabilities, judgments, fines, penalties or amounts paid in settlement for which the Company would also be obligated pursuant to this Agreement, the Company shall reimburse such stockholder or Affiliate in full on demand.
(e) Exceptions . Any other provision herein to the contrary notwithstanding, the Company shall not be obligated under the Agreement to indemnify Indemnitee:
(1) For Expenses incurred in connection with Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, counterclaim or crossclaim, except (x) as contemplated by Section 3(b), (y) in specific cases if the
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board of directors of the Company has approved the initiation or bringing of such Proceeding, and (z) as may be required by law.
(2) For an accounting of profits arising from the purchase and sale by the Indemnitee of securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
(f) Subrogation . In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute such documents and do such acts as the Company may reasonably request to secure such rights and to enable the Company effectively to bring suit to enforce such rights; provided that the Company shall not be entitled to contribution or indemnification from or subrogation against any stockholder of the Company, any affiliate of any such stockholder or any insurer under a policy maintained by any such stockholder or affiliate.
4. Contribution .
(a) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(b) To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for all expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement), in connection with any Proceeding, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding : and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
5. Advancement of Expenses .
The Company shall pay all Expenses incurred by Indemnitee in connection with any Proceeding in any way connected with, resulting from or relating to Indemnitee’s Corporate Status, other than a Proceeding initiated by Indemnitee for which the Company would not be obligated to indemnify Indemnitee pursuant to Section 3(e)(i), in advance of the final disposition of such Proceeding and without regard to whether Indemnitee will ultimately be entitled to be indemnified for such Expenses and without regard to whether an Adverse Determination has been made, except as contemplated by the last sentence of Section 6(f). Indemnitee shall repay such amounts advanced only if and to the extent that it shall ultimately be determined by a court of competent jurisdiction in a final and non-appealable decision that Indemnitee is not entitled to be indemnified by the Company for such Expenses. Such repayment obligation shall be unsecured and shall not bear interest. The Company shall not impose on Indemnitee additional conditions to advancement or require from Indemnitee additional undertakings regarding repayment. The Company agrees that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement,
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all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable.
6. Indemnification Procedure .
(a) Notice of Proceeding; Cooperation . Indemnitee shall give the Company notice in writing as soon as practicable of any Proceeding for which indemnification will or could be sought under this Agreement, provided that any failure or delay in giving such notice shall not relieve the Company of its obligations under this Agreement unless and to the extent that the Company is materially prejudiced by such failure.
(b) Settlement . The Company will not, without the prior written consent of Indemnitee, which may be provided or withheld in Indemnitee’s sole discretion, effect any settlement of any Proceeding against Indemnitee or which could have been brought against Indemnitee unless such settlement solely involves the payment of money by persons other than Indemnitee and includes an unconditional release of Indemnitee from all liability on any matters that are the subject of such Proceeding and an acknowledgment that Indemnitee denies all wrongdoing in connection with such matters. The Company shall not be obligated to indemnify Indemnitee against amounts paid in settlement of a Proceeding against Indemnitee if such settlement is effected by Indemnitee without the Company’s prior written consent, which shall not be unreasonably withheld.
(c) Request for Payment ; Timing of Payment . To obtain indemnification payments or advances under this Agreement, Indemnitee shall submit to the Company a written request therefor, together with such invoices or other supporting information as may be reasonably requested by the Company and reasonably available to Indemnitee. The Company shall make indemnification payments to Indemnitee no later than 30 days, and advances to Indemnitee no later than 10 days, after receipt of the written request (and such invoices or other supporting information) of Indemnitee.
(d) Determination . The Company intends that Indemnitee shall be indemnified to the fullest extent permitted by law as provided in Section 3 and that no Determination shall be required in connection with such indemnification. In no event shall a Determination be required in connection with advancement of Expenses pursuant to Section 5 or in connection with indemnification for Expenses incurred as a witness or incurred in connection with any Proceeding or portion thereof with respect to which Indemnitee has been successful on the merits or otherwise (including, without limitation, settlement of Proceeding with or without payment of money or other consideration or the termination of any issue or matter in such Proceeding by dismissal, with or without prejudice). Any decision that a Determination is required by law in connection with any other indemnification of Indemnitee, and any such Determination, shall be made within 30 days after receipt of Indemnitee’s written request for indemnification, as follows:
(1) If no Change in Control has occurred, (w) by a majority vote of the directors of the Company who are not parties to such Proceeding, even though less than a quorum, with the advice of Independent Legal Counsel, or (x) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, with the advice of Independent Legal Counsel, or (y) if there are no such directors, or if such directors so direct, by Independent
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Legal Counsel in a written opinion to the Company and Indemnitee, or (z) by the stockholders of the Company.
(2) If a Change in Control has occurred, by Independent Legal Counsel in a written opinion to the Company and Indemnitee.
Article I. The Company shall pay all Expenses incurred by Indemnitee in connection with a Determination.
(e) Independent Legal Counsel . If there has not been a Change in Control, Independent Legal Counsel shall be selected by the board of directors of the Company and approved by Indemnitee (which approval shall not be unreasonably withheld or delayed). If there has been a Change in Control, Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of Independent Legal Counsel and indemnify Independent Legal Counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement.
(f) Consequences of Determination; Remedies of Indemnitee . The Company shall be bound by and shall have no right to challenge a Favorable Determination. If an Adverse Determination is made, or if for any other reason the Company does not make timely indemnification payments or advances of Expenses, Indemnitee shall have the right to commence a Proceeding before a court of competent jurisdiction to challenge such Adverse Determination and/or to require the Company to make such payments or advances. Indemnitee shall be entitled to be indemnified for all Expenses incurred in connection with such a Proceeding in accordance with Section 3(b) and to have such Expenses advanced by the Company in accordance with Section 5. If Indemnitee fails to timely challenge an Adverse Determination, or if Indemnitee challenges an Adverse Determination and such Adverse Determination has been upheld by a court of competent jurisdiction in a final and non-appealable decision, then, to the extent and only to the extent required by such Adverse Determination or final decision, the Company shall not be obligated to indemnify or advance Expenses to Indemnitee under this Agreement.
(g) Presumptions; Burden of Proof . In connection with any Determination, or any review of any Determination, by any person, including a court:
(1) It shall be a presumption that a Determination is not required.
(2) It shall be a presumption that Indemnitee has met the applicable standard of conduct and that indemnification of Indemnitee is proper in the circumstances.
(3) The burden of proof shall be on the Company to overcome the presumptions set forth in the preceding clauses (i) and (ii), and each such presumption shall only be overcome if the Company establishes that there is no reasonable basis to support it.
(4) The termination of any Proceeding by judgment, order, finding, settlement (whether with or without court approval) or conviction, or upon a plea
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of nolo contendere , or its equivalent, shall not create a presumption that indemnification is not proper or that Indemnitee did not meet the applicable standard of conduct or that a court has determined that indemnification is not permitted by this Agreement or otherwise.
(5) Neither the failure of any person or persons to have made a Determination nor an Adverse Determination by any person or persons shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee did not meet the applicable standard of conduct, and any Proceeding commenced by Indemnitee pursuant to Section 6(f) shall be de novo with respect to all determinations of fact and law.
7. Directors and Officers Liability Insurance .
(a) Maintenance of Insurance . So long as the Company or any of its Subsidiaries maintains liability insurance for any directors, officers, employees or agents of any such person, the Company shall ensure that Indemnitee is covered by such insurance in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s and its Subsidiaries’ then current directors and officers. If at any date (i) such insurance ceases to cover acts and omissions occurring during all or any part of the period of Indemnitee’s Corporate Status or (ii) neither the Company nor any of its Subsidiaries maintains any such insurance, the Company shall ensure that Indemnitee is covered, with respect to acts and omissions prior to such date, for at least six years (or such shorter period as is available on commercially reasonable terms) from such date, by other directors and officers liability insurance, in amounts and on terms (including the portion of the period of Indemnitee’s Corporate Status covered) no less favorable to Indemnitee than the amounts and terms of the liability insurance maintained by the Company on the date hereof.
(b) Notice to Insurers . Upon receipt of notice of a Proceeding pursuant to Section 6(a), the Company shall give or cause to be given prompt notice of such Proceeding to all insurers providing liability insurance in accordance with the procedures set forth in all applicable or potentially applicable policies. The Company shall thereafter take all necessary action to cause such insurers to pay all amounts payable in accordance with the terms of such policies.
8. Exculpation, etc .
(a) Limitation of Liability . Indemnitee shall not be personally liable to the Company or any of its Subsidiaries or to the stockholders of the Company or any such Subsidiary for monetary damages for breach of fiduciary duty as a director of the Company or any such Subsidiary ; provided , however , that the foregoing shall not eliminate or limit the liability of the Indemnitee (i) for any breach of the Indemnitee’s duty of loyalty to the Company or such Subsidiary or the stockholders thereof ; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law ; (iii) under Section 174 of the DGCL or any similar provision of other applicable corporations law ; or (iv) for any transaction from which the Indemnitee derived an improper personal benefit. If the DGCL or such other applicable law shall be amended to permit further elimination or limitation of the personal liability of directors, then the liability of the Indemnitee shall, automatically, without
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any further action, be eliminated or limited to the fullest extent permitted by the DGCL or such other applicable law as so amended.
(b) Period of Limitations . No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company or any of its Subsidiaries against Indemnitee or Indemnitee’s estate, spouses, heirs, executors, personal or legal representatives, administrators or assigns after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period, provided that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
9. Miscellaneous .
(a) Non-Circumvention . The Company shall not seek or agree to any order of any court or other governmental authority that would prohibit or otherwise interfere, and shall not take or fail to take any other action if such action or failure would reasonably be expected to have the effect of prohibiting or otherwise interfering, with the performance of the Company’s indemnification, advancement or other obligations under this Agreement.
(b) Severability . If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law ; (ii) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto ; and (iii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
(c) Notices . All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, (ii) on the first business day following the date of dispatch if delivered by a recognized next-day courier service or (iii) on the third business day following the date of mailing if delivered by domestic registered or certified mail, properly addressed, or on the fifth business day following the date of mailing if sent by airmail from a country outside of North America, to Indemnitee at the address shown on the signature page of this Agreement, to the Company at the address shown on the signature page of this Agreement, or in either case as subsequently modified by written notice.
(d) Amendment and Termination . No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by all the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.
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(e) Successors and Assigns . This Agreement shall be binding upon the Company and its respective successors and assigns, including without limitation any acquiror of all or substantially all of the Company’s assets or business and any survivor of any merger or consolidation to which the Company is party, and shall inure to the benefit of and be enforceable by Indemnitee and Indemnitee’s estate, spouses, heirs, executors, personal or legal representatives, administrators and assigns. The Company shall require and cause any such successor, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement as if it were named as the Company herein. No such assumption and agreement shall relieve the Company of any of its obligations hereunder, and this Agreement shall not otherwise be assignable by the Company.
(f) Choice of Law; Consent to Jurisdiction . This Agreement shall be governed by and its provisions construed in accordance with the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely within Delaware, without regard to the conflict of law principles thereof. The Company and Indemnitee each hereby irrevocably consents to the jurisdiction of the courts of the State of Delaware for all purposes in connection with any Proceeding which arises out of or relates to this Agreement and agree that any action instituted under this Agreement shall be brought only in the state courts of the State of Delaware.
(g) Integration and Entire Agreement . This Agreement sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto, provided that the provisions hereof shall not supersede the provisions of the Company’s certificate of incorporation, bylaws or other organizational agreement or instrument, any other agreement, any vote of stockholders or directors, the DGCL or other applicable law, to the extent any such provisions shall be more favorable to Indemnitee than the provisions hereof.
(h) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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By: |
/s/ Dion Persson |
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Name: Dion Persson |
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Title: Senior Vice President, Business Development |
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Address: 150 Peabody Place |
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Memphis, TN 38103 |
AGREED TO AND ACCEPTED: |
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INDEMNITEE: |
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By: |
/s/ Rex Tibbens |
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Name: Rex Tibbens |
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Title: |
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Address: XXXX |
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XXXX, WA 98110 |
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ServiceMaster Global Holdings, Inc.
Schedule of Signatories* to a Director Indemnification Agreement
Mark E. Tomkins
Peter L. Cella
William C. Cobb
John B. Corness
Richard P. Fox
Laurie Ann Goldman
Naren K. Gursahaney
Steven B. Hochhauser (effective June 1, 2018)
Stephen J. Sedita
Nikhil M. Varty
* Jerri L. DeVard, Robert J. Gillette, Thomas C. Tiller, Jr., John Krenicki, Jr., David H. Wasserman, Darren M. Friedman, Sarah Kim and Curtis D. Hecht each previously signed a Director Indemnification Agreement, but they are no longer serving on our Board of Directors.
The form of Director Indemnification Agreement was filed with the SEC on June 19, 2014 as Exhibit 10.71 to the Registration Statement on Form S-1 of ServiceMaster Global Holdings, Inc.
Exhibit 10.8
E mployee Stock Option Agreement
This Employee Stock Option Agreement, dated as of ________, 20__, between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and the associate whose name appears on the signature page hereof and who is employed by the Company or one of its Subsidiaries, is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms used, but not otherwise defined, in this Agreement may be found in the Plan.
The Company and the Associate hereby agree as follows:
Section 1. Grant of Options .
(a) Confirmation of Grant . The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Associate of Options to purchase the number of shares of Company Common Stock specified on the signature page hereof. The Options are not intended to be Incentive Stock Options. This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan. If there is any inconsistency between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
(b) Option Price . Each share covered by an Option shall have the Option Price specified on the signature page hereof.
Section 2. Vesting and Exercisability .
(a) Except as otherwise provided in the Plan or Section 2(b) of this Agreement, the Options shall become vested in four equal annual installments on each of the first through fourth anniversaries of the Grant Date , subject to the continuous employment of the Associate with the Company until the applicable vesting date; provided that if the Associate’s employment with the Company is terminated by reason of the Associate’s death or
Disability, any Options held by the Associate shall immediately vest as of the effective date of such termination.
(b) Discretionary Acceleration . The Administrator, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time.
(c) Exercise . Once vested in accordance with the provisions of this Agreement, the Options may be exercised at any time and from time to time prior to the date such Options terminate pursuant to Section 3. Options may only be exercised with respect to whole shares and must be exercised in accordance with Section 4.
Section 3. Termination of Options .
(a) Normal Termination Date . Unless earlier terminated pursuant to Section 3(b) or the Plan, the Options shall terminate on the tenth anniversary of the Grant Date (the “ Normal Termination Date ”), if not exercised prior to such date.
(b) Early Termination . If the Associate’s employment with the Company terminates for any reason, any Options held by the Associate that have not vested before the effective date of such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) or that do not become vested on such date in accordance with Section 2 shall terminate immediately upon such termination of employment (determined without regard to any statutory or deemed or express contractual notice period) and, if the Associate’s employment is terminated for Cause, all Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination. All vested Options held by the Associate following the effective date of a termination of employment (the “ Covered Options ”) shall remain exercisable until the first to occur of ( i ) the one-year anniversary in the case of a termination by reason of the Associate’s death or Disability or a retirement from active service on or after the Associate reaches normal retirement age, or in the event of any other termination of employment, the three-month anniversary of the effective date of the Associate’s termination of employment
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(determined without regard to any deemed or express statutory or contractual notice period) ( ii ) the Normal Termination Date or ( iii ) the cancellation of the Options pursuant to Section 5(a), and if not exercised within such period the Options shall automatically terminate upon the expiration of such period .
Section 4. Manner of Exercis e . Subject to such reasonable administrative regulations as the Administrator may adopt from time to time, the exercise of vested Options by the Associate shall be pursuant to procedures set forth in the Plan or established by the Administrator from time to time and shall include the Associate specifying the proposed date on which the Associate desires to exercise a vested Option (the “ Exercise Date ”), the number of whole shares with respect to which the Options are being exercised (the “ Exercise Shares ”) and the aggregate Option Price for such Exercise Shares (the “ Exercise Price ”) or such other or different requirements as may be imposed by the Company. Unless otherwise determined by the Administrator, ( i ) on or before the Exercise Date the Associate shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus any required withholding taxes or other similar taxes, charges or fees (including, if available, pursuant to a broker-assisted cashless exercise program established by the Company whereby the Associate may exercise vested Options by an exercise-and-sell procedure in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is obtained from the sale of shares in the public market) and ( ii ) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent). The Company may require the Associate to furnish or execute such other documents as the Company shall reasonably deem necessary ( i ) to evidence such exercise or ( ii ) to comply with or satisfy the requirements of the Securities Act, applicable state or non ‑U.S. securities laws or any other law.
Section 5. Change in Control .
(a) Unless otherwise determined by the Administrator, no cancellation, acceleration of vesting or other payment shall occur with respect to any stock option in connection with a Change in Control occurring prior to the fourth anniversary of the Grant Date, if the Administrator reasonably determines prior to the Change in Control that the Associate shall receive an “Alternative Award” meeting the requirements of the Plan; provided, however, that if within two years following a Change in Control, the Associate's employment is involuntarily (other than for Cause)
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terminated or the Associate resigns with Good Reason (as defined below), at a time when any portion of the Alternative Award is unvested, the unvested portion of such Alternative Award shall immediately vest in full and such Associate shall be provided with either cash or marketable stock equal to the fair market value of the stock subject to the Alternative Award on the date of termination (and, in the case of Alternative Awards that are stock options or stock appreciation rights, in excess of the exercise price or base price that the Associate would be required to pay in respect of such Alternative Award)..
(i) Good Reason means, without the Associate’s written consent, the occurrence of any of the following events:
a. The reduction in any material respect in the Associate’s position(s), authorities or responsibilities that they had with the Company immediately prior to the time of the Change in Control;
b. A material reduction in Associate’s annual rate of base salary, annual target cash bonus opportunity or target annual long-term incentive opportunity, each in effect as of immediately prior to the date of the Change in Control; or
c. A material change in the location of Associate’s location of work which will be at least more than 50 miles from their place at work at the Company immediately prior to the date of the Change in Control.
(b) If the Associate determines that Good Reason exists, the Associate must notify the Company in writing, within ninety (90) days following the initial existence of such grounds that the Associate determines constitutes Good Reason, or else such event shall not constitute Good Reason under the terms of the Associate’s employment. If the Company remedies such event within thirty (30) days following receipt of such notice, the Associate may not terminate employment for Good Reason as a result of such event (the “ Cure Period ”). In the event the Company does not timely remedy such event, the Associate must terminate his employment ninety (90) days following the end of the Cure Period.
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Section 6. Miscellaneous .
(a) Withholding . The Company or one of its Subsidiaries may require the Associate to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise, settlement or purchase of the Options.
(b) Incorporation of Forfeiture Provisions . The Associate acknowledges and agrees that, pursuant to the Plan, he or she shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Agreement or as required by applicable law after the date of this Agreement.
(c) Restrictive Covenants . In consideration of the grant of the Options, during the Associate’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twelve (12) months following the termination of the Associate’s employment (whether such termination is initiated by the Associate or the Associate’s employer), the Associate shall not ( i ) become employed by, operate or provide services to any business or other entity that competes with the Company Group; ( ii ) solicit or sell any product or service in competition with the Company Group to any person, business or other entity that is a customer of the Company Group; ( iii ) interfere with the Company Group’s relations with any of its customers, franchisees, subcontractors, consultants, vendors or business partners; or ( iv ) induce or encourage any Company Group employee to leave his/her position or to seek employment or association with any person or entity other than the Company Group. This Agreement is in addition to and does not supersede any other agreements between the Associate and the Company Group prohibiting competition with the Company Group. Nothing in this paragraph shall be construed to restrict the right of an attorney to practice law to the extent protected by statute, common law or applicable rules of professional conduct.
(d) Dispute Resolution . Any dispute or controversy between Associate and the Company, whether arising out of or
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relating to this Agreement, the breach of this Agreement, or otherwise, shall be resolved in accordance with the ServiceMaster We Listen Dispute Resolution Plan then in effect. Notwithstanding the foregoing, the Associate agrees that the Company may seek a temporary restraining order and/or preliminary injunction in any court of competent jurisdiction, without the posting of a bond, in order to preserve the status quo or to enforce the restrictive covenants in this Agreement.
(e) Authorization to Share Personal Data . The Associate authorizes any Affiliate of the Company that employs the Associate or that otherwise has or lawfully obtains personal data relating to the Associate to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan.
(f) No Rights as Stockholder; No Voting Rights . The Associate shall have no rights as a stockholder of the Company with respect to any shares covered by the Options until the exercise of the Options and delivery of the shares.
(g) No Right to Continued Employment . Nothing in this Agreement shall be deemed to confer on the Associate any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(h) Non-Transferability of Options . The Options may be exercised only by the Associate. The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Associate upon the Associate’s death or with the Company’s consent.
(i) Binding Effect; Benefits . This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement
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and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(i) Waiver . Any party hereto or beneficiary hereof may by written notice to the other parties ( A ) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, ( B ) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and ( C ) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.
(ii) Amendment . This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Associate and the Company.
(k) Assignability . Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Associate without the prior written consent of the other party.
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(l) Applicable Law and Forum . This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
(m) Waiver of Jury Trial . Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction contemplated hereby. Each party ( i ) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and ( ii ) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this section.
(n) Section and Other Headings, etc . The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(o) Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Associate have executed this Agreement as of the date first above written.
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Exhibit 10.9
E mployee Restricted Stock Unit Agreement
This Employee Restricted Stock Unit Agreement, dated as of __________, 20__ (the “ Grant Date ”), between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “ Company ”), and the associate whose name appears on the signature page hereof and who is employed by the Company or one of its Subsidiaries, is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan (the “ Plan ”). The meaning of capitalized terms may be found in the Plan.
The Company and the Associate hereby agree as follows:
Section 1. Grant of Restricted Stock Units . Subject to the terms of this Agreement, the Company hereby evidences and confirms, effective as of the date hereof, its grant to the Associate of Restricted Stock Units (“RSUs”) representing the right to receive the number of shares of Company Common Stock specified on the signature page hereof. This Agreement is entered into pursuant to, and the terms of the RSUs are subject to, the terms of the Plan. If there is any conflict between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
Section 2. Vesting and Forfeiture .
(a) Based on Continued Employment . The Associate’s RSUs shall vest in three equal installments on the first, second and third anniversaries of the Grant Date, subject to the Associate’s continued employment with the Company or any Subsidiary through the applicable vesting date.
(b) Discretionary Acceleration . The Administrator, in its sole discretion, may accelerate the vesting of all or a portion of the RSUs at any time and from time to time.
(c) Effect of Termination of Employment . Upon termination of the Associate’s employment with the Company and its Subsidiaries for any reason (whether initiated by the Company or by the Associate), any unvested RSUs shall be forfeited, provided that if the Associate’s employment is terminated by reason of the Associate’s death or Disability (such termination, a “ Special Termination ”), the Associate’s RSUs shall vest as to the number of RSUs that would have vested on the next anniversary of the Grant Date (assuming the Associate’s employment had continued through such anniversary) multiplied by a fraction, the numerator of which is the number of days elapsed since ( x ) the Grant Date, if the Special Termination occurs on or prior to the first anniversary of the Grant Date, or ( y ) the most recent prior anniversary of the Grant Date, if the Special Termination occurs after the first anniversary of the Grant Date, and the denominator of which is 365.
(d) Effect of a Change in Control . Unless otherwise determined by the Administrator, no cancellation, acceleration of vesting or other payment shall occur with respect to any RSU in connection with a Change in Control occurring prior to the third anniversary of the Grant Date, if the Administrator reasonably determines prior to the Change in Control that the Associate shall receive an “Alternative
Award” meeting the requirements of the Plan; provided, however, that if within two years following a Change in Control, the Associate's employment is involuntarily (other than for Cause) terminated or the Associate resigns with Good Reason (as defined below), at a time when any portion of the Alternative Award is unvested, the unvested portion of such Alternative Award shall immediately vest in full and such Associate shall be provided with either cash or marketable stock equal to the fair market value of the stock subject to the Alternative Award on the date of termination.
(i) Good Reason means, without the Associate’s written consent, the occurrence of any of the following events :
a. The reduction in any material respect in the Associate’s position(s), authorities or responsibilities that they had with the Company immediately prior to the time of the Change in Control;
b. A material reduction in Associate’s annual rate of base salary, annual target cash bonus opportunity or annual target long-term incentive opportunity, each in effect as of immediately prior to the date of the Change in Control; or
c. A material change in the location of Associate’s location of work which will be at least more than 50 miles from their place at work at the Company immediately prior to the date of the Change in Control.
If the Associate determines that Good Reason exists, the Associate must notify the Company in writing, within ninety (90) days following the initial existence of such grounds that the Associate determines constitutes Good Reason, or else such event shall not constitute Good Reason under the terms of the Associate’s employment. If the Company remedies such event within thirty (30) days following receipt of such notice, the Associate may not terminate employment for Good Reason as a result of such event (the “ Cure Period ”). In the event the Company does not timely remedy such event, the Associate must terminate his employment ninety (90) days following the end of the Cure Period.
Section 3. Dividend Equivalents .
(a) If the Company pays any cash dividend or similar cash distribution on the Common Stock, the Company shall credit to the Associate’s account with additional RSUs in an amount equal to (A) the product of (x) the number of the Associate’s RSUs as of the record date for such distribution times (y) the per share amount of such dividend or similar cash distribution on Common Stock, divided by (B) the Fair Market Value on the date such additional RSUs are so credited, rounded down to the nearest whole number of shares. If the Company makes any dividend or other distribution on the Common Stock in the form of Common Stock or other securities, the Company will credit the Associate’s account with that
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number of additional shares of Common Stock or other securities that would have been distributed with respect to that number of shares of Common Stock underlying the Associate’s RSUs as of the record date thereof. Any cash amounts or shares of Common Stock or other securities credited to the Associate’s account shall be paid to the Associate on the Settlement Date.
(b) Adjustment in the Event of Spin-Off. Notwithstanding anything set forth in this Agreement to the contrary, upon the occurrence of the completion of the spin-off of AHS Holding Company, Inc. or its successor (“AHS”) by the Company (the “Spin-Off”), the RSUs shall be adjusted in accordance with Section 4.3 of the Plan such that the Associate shall be entitled to an adjusted Award which relates solely to: (i) if, on and immediately after the Spin-Off, the Associate remains employed with the Company (or any Subsidiary thereof following the Spin-Off), the securities of the Company; or (ii) if the Associate, immediately following the Spin-Off, is employed with AHS or any Subsidiary thereof , the securities of AHS.
Section 4. Settlement . Subject to Section 6(a), promptly following the date on which a RSUs becomes vested , and in any event no later than March 15 th of the calendar year following the calendar year in which such vesting occurs (the “ Settlement Date ”), the Associate shall receive, without payment, one Settlement Share in respect of each such RSUs.
Section 5. Restriction on Transfer ; Non-Transferability of RSUs . The RSUs are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise). Any purported transfer in violation of this Section 6 shall be void ab initio .
(a) Withholding . The Company or one of its Subsidiaries shall require the Associate to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding obligations that may arise in connection with the vesting of the RSUs and the related issuance of the Shares. Notwithstanding the preceding sentence, if the Associate elects not to remit cash in respect of such obligations and a facility is not available to the Associate by which the Associate may sell a number of Shares in the public market to satisfy such obligations, the Company shall retain a number of Shares subject to the RSUs then vesting that have an aggregate Fair Market Value as of the Settlement Date equal to the amount of such taxes required to be withheld (and the Associate shall thereupon be deemed to have satisfied his or her obligations under this Section 6(a)); provided that the number of Shares retained shall not be in excess of the minimum amount required to satisfy the statutory withholding tax obligations (it being understood that the value of any fractional share of Company Common Stock shall be paid in cash). The number of Shares to be issued shall thereupon be reduced by the number of Shares so retained. The method of withholding set forth in the immediately preceding sentence shall not be available if withholding in this manner
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would violate any financing instrument of the Company or any of its Subsidiaries or to the extent that a facility is available to the Associate by which the Associate may sell Shares in the public market to satisfy such obligations.
(b) Incorporation of Forfeiture Provisions . The Associate acknowledges and aggress that, pursuant to the Plan, he or she shall be subject to the Company’s Clawback Policy and any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Agreement or as required by applicable law after the date of this Agreement.
(c) Restrictive Covenants . In consideration of the grant of the RSUs, during the Associate’s employment with the Company and its Subsidiaries (the “ Company Group ”) and for a period of twelve (12) months following the termination of the Associate’s employment (whether such termination is initiated by the Associate or the Associate’s employer), the Associate shall not ( i ) become employed by, operate or provide services to any business or other entity that competes with the Company Group; ( ii ) solicit or sell any product or service in competition with the Company Group to any person, business or other entity that is a customer of the Company Group; ( iii ) interfere with the Company Group’s relations with any of its customers, franchisees, subcontractors, consultants, vendors or business partners; or ( iv ) induce or encourage any Company Group employee to leave his/her position or to seek employment or association with any person or entity other than the Company Group. This Agreement is in addition to and does not supersede any other agreements between the Associate and the Company Group prohibiting competition with the Company Group. Nothing in this paragraph shall be construed to restrict the right of an attorney to practice law to the extent protected by statute, common law or applicable rules of professional conduct.
(d) Dispute Resolution . Any dispute or controversy between Associate and the Company, whether arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be resolved in accordance with the ServiceMaster We Listen Dispute Resolution Plan then in effect. Notwithstanding the foregoing, the Associate agrees that the Company may seek a temporary restraining order and/or preliminary injunction in any court of competent jurisdiction, without the posting of a bond, in order to preserve the status quo or to enforce the restrictive covenants in Section 8(c) of this Agreement.
(e) Authorization to Share Personal Data . The Associate authorizes any Affiliate of the Company that employs the Associate or that otherwise has or lawfully obtains personal data relating to the Associate to divulge such personal data to the Company if and to the extent appropriate in connection with this Agreement or the administration of the Plan.
(f) No Rights as Stockholder; No Voting Rights . The Associate shall have no rights as a stockholder of the Company with respect to any RSUs or Shares covered by the RSUs until the delivery of the Shares.
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(g) No Right to Continued Employment . Nothing in this Agreement shall be deemed to confer on the Associate any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.
(h) Binding Effect; Benefits . This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
(i) Waiver . Any party hereto or beneficiary hereof may by written notice to the other parties ( A ) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, ( B ) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and ( C ) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.
(ii) Amendment . This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Associate and the Company.
(j) Assignability . Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Associate without the prior written consent of the other.
(k) Applicable Law and Forum . This Agreement shall be governed in all respects, including, but not limited to, as to validity, interpretation and effect, by the internal laws of the State of Delaware, without reference to principles of conflict of law that would require application of the law of another jurisdiction. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Agreement shall be brought in the federal or state courts
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located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action.
(l) Section and Other Headings, etc. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(m) Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Associate have executed this Agreement as of the date first above written.
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SERVICEMASTER GLOBAL HOLDINGS, INC. |
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CERTIFICATIONS
I, Nikhil M. Varty , certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of ServiceMaster Global Holdings, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: August 1 , 2018 |
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/s/ Nikhil M. Varty |
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Nikhil M. Varty |
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Chief Executive Officer |
CERTIFICATIONS
I, Anthony D. DiLucente , certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of ServiceMaster Global Holdings, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: August 1 , 2018 |
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/s/ Anthony D. DiLucente |
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Anthony D. DiLucente |
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Senior Vice President and Chief Financial Officer |
Certification of Chief Executive Officer
Pursuant to Section 1350 of Chapter 63 of Title 18 of The United States Code
I, Nikhil M. Varty , the Chief Executive Officer of ServiceMaster Global Holdings, Inc., certify that (i) the Quarterly Report on Form 10-Q for the quarter ended June 30 , 2018 , fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) the information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of ServiceMaster Global Holdings, Inc.
cto |
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/s/ Nikhil M. Varty |
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Nikhil M. Varty |
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August 1 , 2018 |
Certification of Chief Financial Officer
Pursuant to Section 1350 of Chapter 63 of Title 18 of The United States Code
I, Anthony D. DiLucente , the Senior Vice President and Chief Financial Officer of ServiceMaster Global Holdings, Inc., certify that (i) the Quarterly Report on Form 10-Q for the quarter ended June 30 , 2018 , fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) the information contained in such Quarterly Report on Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of ServiceMaster Global Holdings, Inc.
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/s/ Anthony D. DiLucente |
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Anthony D. DiLucente |
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August 1 , 2018 |